UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


r  lotsam  and  J  etsam 


By 

Albert  W.  Gaines,  B.A.,  LL.B. 
of  the  Chattanooga  (Tenn.)  Bar 


Qtif  nan  profidl 

-.  --  oifictt  =  = 


Brookline,  Boston 

The  Riverdale  Press,  Publishers 

1913 


T 


Copyright,  1913 
By  The  Riverdale  Press 


TVze  Riverdale  Press,  Brookline,  Boston,  Mass.,  U.  S.  A. 


Contents 

The  Limb  of  the  Law             ....  3 

Fink  v.  Evans      ......  17 

Confession  and  Avoidance     ....  22 

The  State  v.  Linkhaw             ....  26 

The  Opinion 29 

The  Lawyer's  Lachrymal  Rights     .          .          .  32 

In  Totidem  Verbis        .....  36 

A  Case  "In  Point" 39 

Ezekiel's  Alibi 48 

Liberal  Construction     .....  50 

Wenninger  v.  Mitchell             ....  53 

Charging  the  Jury         .....  59 

Jus  Mulorum       ......  60 

The  Law  Student's  Soliloquy          ...  65 

A  Case  of  Locatio         .....  68 

Golf  versus  Law             .....  72 

The  Law  of  Vagrancy             ....  75 

Per  Tout  et  Non  per  My       ....  78 

A  "Breach  of  the  Peas"          ....  80 

Ezekiel's  Plea 87 

De  Rivafonoli  vs.  Corsetti      ....  89 

In  re  Goose          ......  94 

Osculatory  Assault       .          .          .          .          .  98 

The  Jury 102 

Afterthought 107 


Preface 

I  JOURNEYED  thro'  the  realms  of  law, 
And,  as  I  wandered  on,  I  saw 
A  gentle  Muse  who  said  to  me 
That  actually  she  could  not  see 
Why  lawyers  should  not  paint  in  rhyme 
The  glories  of  the  law  sublime. 
I  told  her  that  in  law's  domain 
Was  naught  to  catch  the  poet's  strain, 
That  in  the  realms  of  legal  lore, 
The  wings  of  fancy  fail  to  soar, 
And  that  there  was  no  citadel 
Of  law  up  where  the  Muses  dwell. 
She  said  from  text-books  and  the  code 
She'd  not  expect  a  lyric  ode, 
Nor  from  the  digest  I'd  prepare 
An  epic  or  an  idyl  rare ; 
But  yet  she  thought  I  might  betimes 
Indite  some  pointed,  rambling  rhymes. 
I  looked  again,  and  then  I  saw 
She  was  the  comic  Muse  of  law, 
And  so,  methought,  perhaps  I  might 
Some  sort  of  limping  lines  indite, 


VI  Preface 

Which,  tho'  they'd  shamble  'cross  the  sheet, 

They'd  amble  on  poetic  feet. 

So,  with  the  comic  Muse  a  friend, 

These  modest  verses  I  have  penn'd ; 

And,  tho'  Parnassus  shines  afar, 

I  trust  a  kind,  indulgent  bar 

May  in  these  lines  some  merit  see 

And  come  along  and  smile  with  me. 


Flotsam  and  Jetsam 


The  Limb  of  the  Law 

The  law;  it  hath  honored  us,  may  we  honor  it. 

—  DANIEL  WEBSTER. 

O   THEM  IS,   stern   goddess,   who   presides   o'er 
the  law, 
Thy  inspiring  aid  we  invoke, 
While  we  try  to  portray,  in  a  rhythmical  lay, 

The  disciples  of  Blackstone  and  Coke. 
If  now  we  would  sing  of  a  common-place  thing, 

As  the  rose,  the  brook  or  the  stars; 
Or  if  we  craved  light  to  help  us  indite 

A  Homeric  epic  to  Mars; 
Or  if  we  would  tell  of  the  dearest  gazelle, 

Or  the  houri  with  the  eyes  of  the  fawn, 
Or  if  we  would  trace  on  the  beautiful  face 

Of  a  maid  the  blush  of  the  dawn ;  — 
With  a  stroke  of  the  pen  we  would  dash  it  off  then, 

Thy  aid  we  ne'er  would  invoke, 
Nor  that  thou  descend  from  Olympus  to  lend 

Inspiration  to  the  poetic  stroke ; 
But  when  we  would  draw  the  limb  of  the  law, 

And  paint  him  in  rhythm  and  rhyme, 


4  Flotsam  and  Jetsam 

When  we  would  portray,  in  a  poetic  way, 

A  theme  so  grand  and  sublime, 
Then  we  would  invoke  the  Olympian  folk, 

The  muses  and  gods  galore, 
Our  pen  to  inspire  with  a  poetic  fire, 

And  a  fund  of  mystical  lore. 
While  in  prose  we  describe  the  brief-making  tribe, 

In  language  quite  pithy  and  terse, 
We  all  truly  need  inspiration  indeed, 

To  put  the  attorney  in  verse. 

The  young  lawyer  dreams  —  how  real  it  seems  — 

And  he  conscientiously  feels, 
That  it  will  not  be  long  ere  clients  will  throng, 

Fairly  treading  on  each  other's  heels; 
His  future  he  views  in  roseate  hues, 

In  visions  of  greatness  he  sees, 
His  opponents  in  court  made  but  the  sport 

Of  his  incontrovertible  pleas. 
But  when  he  has  waited  for  a  practice  belated, 

And  the  cold  world  passes  him  by, 

When  his  prospects  he  views  thro'  the  dumps  and  the 
blues, 

And  he  thinks  it  all  o'er  with  a  sigh,  — 
Then  he  forms  the  conclusion  that  the  law's  a  delusion, 

Of  which  the  youth  should  beware, 
A  siren  that  sings  of  the  loveliest  things, 

But  proves  a  fraud  and  a  snare ; 


The  Limb  of  the  Law 

But  just  when  it  seems  that  all  of  his  dreams 

Of  success  have  proven  a  lie, 
This  votary  of  Themis  —  now  in  extremis  — 

Sees  a  rift  in  the  clouded  sky ; 
An  advancing  foot-fall,  like  an  angelic  call, 

Strikes  plain  on  his  listening  ear, 
A  litigant  astray  seems  coming  his  way  — 

Ye  gods!  a  client  draws  near! 
As  when  drifting  afloat  from  a  harbor  remote, 

The  sport  of  the  wind  and  the  wave, 
A  small  bark  and  frail  sees  a  rescuing  sail 

Hast'ning  most  opportunely  to  save ; 
So,  with  thrilling  emotion,  in  a  clientless  ocean, 

The  young  lawyer,  (far  from  the  land), 
Is  made  to  rejoice  at  the  sound  of  a  voice, 

And  the  touch  of  a  client's  hand. 
But  we  here  draw  the  veil  over  every  detail  — 

We  are  truly  in  conscience  bound 
Not  a  thing  to  reveal,  as  we  certainly  feel 

We  are  treading  on  sacred  ground ; 
For  whom  could  you  find  that  would  be  so  unkind, 

Yea  —  who  would  be  so  base, 
Or  so  very  rude  as  to  dare  to  intrude 

On  the  lawyer's  very  first  case? 
If  there  was  a  flaw  in  his  view  of  the  law,  — 

Which  was  most  probably  true, — 
Is  that  any  reason  why  professional  treason 

Should  expose  it  to  the  vulgar  view? 


6  Flotsam  and  Jetsam 

No!  no!  —  the  mistakes  which  the  young  lawyer  makes, 

We  will  write  them  all  in  the  sand, 
And  the  next  wave  that  sweeps  from  the  Lethean  deeps 

Will  leave  not  a  trace  on  the  strand. 

We  do  not  maintain  that  it's  always  so  plain 

That  the  lawyer's  without  any  flaw, 
But  'twould  be  hard  to  find  any  one  more  maligned 

Than  this  self-same  limb  of  the  law. 
For  instance,  we  cite  what  Coleridge  did  write: 

When  of  business  there  was  a  great  dearth, 
The  devil  once  took  a  journey  to  look 

At  his  rich,  fertile  farm,  the  earth; 
That  while  on  his  journey,  he  saw  an  attorney 

Kill  a  viper  hard  by  a  stable, 
And  he  smiled  this  to  find,  as  it  put  him  in  mind 

Of  Cain  and  his  brother  Abel. 
This  cannot  but  be  a  libel  per  se, 

As  you  will  plainly  perceive, 

When  the  attorney  "raised  Cain"  with  the  viper  'twas 
plain 

A  reminder  of  Adam  and  Eve. 
And  it  shows,  in  our  view,  that  the  Scriptures  are  true, 

Wherein  it  is  solemnly  said, 
Yea,  gravely  decreed,  that  the  woman's  seed 

Shall  bruise  the  serpent's  head ; 


The  Limb  of  the  Law  7 

And  we  think  that  the  act  is  proof  of  the  fact 

That  the  lawyer  is  ever  the  foe 
Of  vipers  and  snakes,  of  humbugs  and  fakes, 

And  of  all  that  is  vulgar  and  low. 

And  some  people  quote  what  the  poet  once  wrote: 

"Let  us  kill  all  the  lawyers,"  to  a  man, 
And  they  say  that  Shakespeare  thus  makes  it  quite  clear 

What  he  thinks  of  the  brief -making  clan ; 
But  if  you  will  turn  to  the  page,  you  will  learn 

To  the  lawyer  high  praise  is  there  paid, 
For  the  utterance  was  made  by  a  pal  of  Jack  Cade, 

When  the  plans  for  rebellion  were  laid ; 
For  it's  plain  as  the  day  where  the  obstacles  lay  — 

That  no  insurrection  could  thrive, 
That  rebellion  must  fail  and  the  law  must  prevail, 

Where  there  was  a  lawyer  alive. 
And  so  you  will  find  that  those  who're  inclined 

To  commit  some  dastardly  deed, 
Would  kill,  if  they  durst,  all  the  lawyers  at  first, 

And  then  'twould  be  easy  indeed. 

There's  a  story  one  hears,  coming  down  the  years, 

That  one  of  the  ancient  bards, 
Aristophanes,  used  words  like  these: 

"The  lawyers  are  all  blackguards." 
We  shall  have  to  admit  that  the  word  that  was  writ 

By  the  poet  was  Eurokroptoi, 


8  Flotsam  and  Jetsam 

And  it  can't  be  denied  that  the  term  was  applied 

To  the  lawyers,  the  Sunagoroi; 
But  if  you  would  seek  the  truth  from  the  Greek, 

You  will  find  that  the  humorous  bard 
Shows  he  never  had  heard  any  thing  so  absurd 

As  a  lawyer's  being  blackguard. 
The  thoughts  he  expressed  are  made  but  a  test, 

To  show  that,  if  proven,  the  claim 
That  the  lawyer's  blackguard,  it  wouldn't  be  hard 

To  prove  all  the  world  is  the  same. 

Some  are  wont  to  relate  how  Peter  the  Great, 

The  redoubtable  Muscovite  Czar, 
When  stopping  awhile  in  the  British  Isle, 

And  viewing  the  English  bar, 
Was  heard  to  declare,  with  an  arrogant  air, 

What  he  alleged  to  be  true, 
That  in  all  the  state  of  Peter  the  Great, 

Of  lawyers  there  were  but  two ; 
And  he  further  remarked  that  when  he  debarked 

In  the  land  of  the  Slav  again, 
'Twas  his  firm,  settled  will  to  instantly  kill 

One  of  these  lawyers  twain. 
And  now  when  today  we  take  a  survey 

Of  the  land  of  the  Russian  Czar, 
See  anarchy's  reign,  with  its  riotous  train 

Or  murder,  oppression  and  war; 


The  Limb  of  the  Law 

When  so  plainly  we  see  such  disorders  can  be, 
And  that  lawlessness  has  such  a  growth, 

We  cannot  but  know  from  the  status  in  quo, 
That  Peter  killed  the  lawyers  both. 


Some  people  there  are  who  are  wont  to  declare 

That  the  lawyer's  life's  one  full  of  ease, 
That  all  of  his  thought  is  expended  on  naught 

But  changing  exhorbitant  fees ; 
And  when  they  would  draw  the  limb  of  the  law, 

He  appears  with  an  indolent  air, 
With  a  typewriter  clerk  to  do  all  the  work, 

As  he  lolls  in  his  easy  chair ; 
And  to  make  more  complete  the  picture,  his  feet 

The  top  of  the  desk  reveals,  — 
An  ingenious  way  for  his  brains,  they  say, 

To  trickle  from  his  hoisted  heels. 
But  we  wish  to  remark  to  him  who'd  embark 

On  life's  calm,  untroubled  sea, 
Under  blue  vaulted  skies,  where  no  storms  will  arise 

To  drive  him  to  windward  or  lee, 
He  should  not  spread  his  sails  where  the  furious  gales 

Of  the  law  make  the  ocean  to  roar, 
Where  the  wild  tempest  beats  on  the  voyaging  fleets, 

Driving  many  a  wreck  ashore ; 


10  Flotsam  and  Jetsam 

For  the  lawyer's  life  is  one  full  of  strife, 

Of  alternate  ups  and  downs, 
Dame  fortune  today  drives  dull  care  away, 

And  tomorrow  she  gloomily  frowns; 
For  it's  not  alone  with  troubles  his  own, 

That  the  lawyer  has  ever  to  deal, 
But  he  also  bears  the  burdens  and  cares 

Of  others  with  equal  zeal. 
His  work  is  not  done  with  the  set  of  the  sun, 

But  oft  in  the  still  of  the  night, 
When  the  countless  stars  peep  and  the  world  is  asleep, 

He  is  working  with  all  his  might ; 
And  meanwhile  the  client,  on  his  lawyer  reliant, 

Unconcernedly,  carelessly  sleeps, 
Snoring  out  the  night  till  the  morning  light 

Into  his  chamber  peeps. 
And  when  all  is  done  and  the  battle  is  won, 

And  the  lawyer  makes  a  modest  charge, 
This  very  same  client,  in  a  manner  defiant, 

Says  the  fee  is  outrageously  large! 
Our  clients,  'tis  true,  can  never  see  through 

The  question  of  fees  complex, 
And  that  as  to  size  the  maxim  applies : 

De  minimis  non  curat  lex. 

Then  some  people  claim,  emphasizing  the  same, 
But  naught  of  the  truth  discerning, 


The  Limb  of  the  Law  n 

That  in  regions  below,  in  the  realms  of  Pluto, 

Some  legal  lights  are  burning ; 
And  some  intimate  that  when  a  just  fate 

Consigns  them  to  that  jurisdiction, 
They'd  dispute  with  Pluto  the  status  in  quo, 

And  probably  try  an  eviction. 

This  count  we  deny,  and  by  way  of  reply, 

Say  it  takes  no  proof  to  show, 
As  it's  self-evident,  no  lawyer's  content 

In  an  adverse  court  below. 
But  suppose  that  we  take,  just  for  argument's  sake, 

A  case,  and  let  us  admit, 
That  the  lawyer  should  stray  from  the  narrow,  straight  way, 

Into  the  Bottomless  Pit; 
That  in  regions  below,  in  the  realms  of  Pluto, 

The  lawyer  should  have  to  be  tried, 
Whether  Heaven  he'd  gain  or  in  Hades  remain  — 

A  question  for  the  court  to  decide. 
Then  methinks  that  I  see  the  Judges  all  three 

The  Hades  judiciary  guiding, 
Jove's  sons,  /Eacus  and  Rhadamanthus, 

And  Minos,  Chief  Justice,  presiding; 
And  there  is  also,  cruel  old  Pluto, 

In  his  flaming  red  robes  of  state, 
And  Proserpine  too,  and  the  whole  Harpy  crew, 

While  Cerberus  is  guarding  the  gate. 


12  Flotsam  and  Jetsam 

Then  Minos,  C.  J.,  methinks  I  hear  say 

To  the  lawyer  thus  arraigned  below : 
"You  are  doomed  here  to  stay  forever  and  aye 

In  the  realms  of  King  Pluto, 
Unless  you  can  show  to  the  Court  here  below, 

Beyond  a  reasonable  doubt, 
And  make  it  appear  that  you  don't  belong  here, 

The  Court  cannot  let  you  out." 

It  seems  then  to  me  I  plainly  can  see 

The  lawyer  slowly  arise, 
His  manner  as  free  as  in  Hell  it  could  be, 

And  addresses  the  Court  thus-wise : 
"If  the  learned  Court  please,  I  am  not  Hercules, 

And  hence  cannot  Cerberus  steal, 
Nor  can  I  aspire  with  an  Orphean  lyre 

To  move  you  to  grant  my  appeal ; 
But  I  shall  undertake,  with  the  law's  help,  to  make 

It  plain  to  an  unbiased  soul, 
So  it  will  appear  clear  that  I  don't  belong  here, 

In  this  unpleasant,  sulphurous  hole ; 
It  cannot  appear  that  I  am  domiciled  here, 

With  no  animo  manendi, 
And  when  I'm  away,  surely  no  one  will  say, 

There's  an  animus  revertendi: 
By  all  which  is  meant  I'm  a  non-resident, 

And  it  doth  fully  appear 


The  Limb  of  the  Law  13 

Conclusively  that  I've  no  habitat 

Nor  permanent  residence  here." 
Then,  methinks,  with  a  frown,  old  Pluto  comes  down 

From  his  throne,  and  says:  "O  Judge, 
The  lawyer  clan  spoils  many  a  plan 

Of  mine,  and  I  owe  them  a  grudge; 
And  now  when  at  last  one  of  them's  fast 

In  my  clutches,  I  will  not  let  go, 
And  the  Court  will,  I  pray,  let  me  fully  repay 

Old  scores  with  the  lawyer  below." 
Says  the  learned  C.  J.,  in  a  judicial  way: 

"By  the  law  it  is  made  to  appear 
Very  clearly,  I  wot,  that  the  lawyer  has  not 

A  permanent  residence  here ; 
But  'tis  perfectly  plain  that  his  plea  here  is  vain, 

For  in  Hades  where  we're  employed, 
What  does  not  agree  with  Pluto's  decree, 

Is  unconstitutional  and  void ; 
And  since  it  is  clear  that  the  lawyer  has  e'er 

Been  opposed  to  infernal  laws, 
Our  judgment  is  that  a  ne  exeat 

Will  issue  at  once  in  the  cause; 
And  it  is  decreed  now  that  the  Court  will  allow 

No  appeal  from  the  final  decree, 
And  the  lawyer  here  may  make  arrangements  to  stay 

Through  the  countless  ages  to  be." 
It  is  very  well  known  that  the  lawyer  is  prone, 
(It  grieves  me  sore  to  report,) 


14  Flotsam  and  Jetsam 

When  the  judgment's  adverse,  to  pour  out  a  curse 

On  the  head  of  the  ignorant  Court ; 
And,  I  opine,  he  would  rather  incline, 

In  the  face  of  so  flagrant  a  case, 
To  use  not  a  few  of  epithets  new 

E'en  to  Pluto  and  those  of  his  place, 
But  instead  he'd  say:   "Now,  since  the  Court  will  allow 

No  appeal  —  lest  justice  miscarry  — 
I  shall  make  use,  in  fine,  of  the  right  that  is  mine  — 

And  go  up  on  a  certiorari" 

The  Judge  sits  alone  'pon  his  great  white  throne; 

It  is  the  judgment  day ; 
He  weighs  the  acts  and  He  sifts  the  facts, 

And  methinks  I  hear  Him  say : 
"When  first  the  universe  was  made, 

I  looked  and  I  plainly  saw, 
I'd  made,  alas!  a  shapeless  mass, 

And  then  I  made  the  law; 
And  since  that  time  the  law  sublime 

Is  made  the  only  source, 
Wherein  resides  the  power  that  guides 

The  planets  in  their  course; 
By  law,  the  countless,  circling  suns 

That  gild  the  face  of  night 
Sweep  on  apace  thro'  boundless  space, 
And  twinkle  in  their  flight; 


The  Limb  of  the  Law  is 

The  pendent  world  as  it  is  whirl'd, 

With  other  worlds  thro'  space, 
As  on  it  rolls,  by  law  it  holds 

Its  orbit  and  its  place: 
Likewise  for  man  was  made  a  plan, 

By  law  he  should  provide 
To  regulate  th'  affairs  of  state, 

And  the  social  world  to  guide ; 
And  it  was  plain  that  to  maintain 

The  law  inviolate, 
There  should  be  then  some  learned  men, 

And  the  lawyer  was  create ; 
The  lawyer-clan  is  part  of  the  plan, 

The  fixed  aim  and  design, 
'Tis  the  lawyer  who  must  carry  through 

The  purposes  divine ; 
Should  the  limb  of  the  law  his  hand  withdraw, 

Right-rule  would  be  but  a  dream, 
The  social  fabric  totter  and  fall, 

And  anarchy  reign  supreme; 
The  lawyer  e'er,  it  is  quite  clear, 

To  his  calling  has  been  true, 
As  he  viewed  the  right,  done  with  his  might, 

What  his  Maker  would  have  him  do ; 
Protecting  the  cause  of  the  helpless  poor, 

And  those  to  wrong  a  prey ; 
For  glittering  gold  he  never  sold 

Nor  bartered  their  rights  away ; 


16  Flotsam  and  Jetsam 

With  an  open  hand  for  charity, 

Sympathetic  and  sincere, 
He  helped  the  weak,  and  from  the  cheek 

Of  sorrow  kissed  the  tear ; 
Sweet  mercy  pleads  his  gentle  deeds 

Of  love  at  heaven's  gates, 
The  mercy  which  he  to  others  showed, 

That  mercy  for  him  awaits; 
Upon  the  altar  of  duty  he  laid 

His  talents,  and  he  has  won 
The  verdict  which  e'en  the  angels  crave : 

'Limb  of  the  Law,  well  done.' 
Therefore,  the  writ  from  the  bottomless  pit 

Is  granted  without  restriction, 
The  record  will  show  that  the  Court  below 

Is  without  any  jurisdiction." 

The  fiat  fast  flies  through  Paradise, 

Borne  on  an  angel's  wing, 
As  the  lawyer  waits  at  the  pearly  gates, 

They  on  their  hinges  swing; 
He  is  made  acquaint  with  Peter,  the  Saint, 

Who  the  new  arrival  greets  — 
The  limb  of  the  law,  sans  a  fault  or  a  flaw, 

Is  walking  the  golden  streets. 


Fink  v.  Evans 

12  Pickle  (95  Tenn.)  413. 

Of  horn  and  morn  and  hark  and  bark, 

And  echo's  answering  sound, 
All  poets1  wit  hath  ever  writ 

In  dog'rel  verse  of  hounds. 

—  HOOD. 

}/"  •  ^WAS  a  starlit,  bright  November  night, 

And  the  moon,  with  its  shimmering  beams, 
-*•     Rose  over  the  hills  of  old  McMinn, 

Silv'ring  the  woods  and  streams. 
'Twas  an  ideal  night  for  the  chase  of  the  fox 

In  the  Mouse-Creek  Country  round, 
And  a  single  blast  on  the  hunter's  horn 

Calls  yelping  forth  many  a  hound : 
Then  away  they  fly,  with  a  hue  and  cry, 

Through  wood,  o'er  hill  and  dale, 
Till  the  baying  sound  from  a  distant  hound 

Announces  the  strike  of  the  trail ; 
Then  vet 'ran  and  pup  take  the  leader's  call  up, 

Till  the  cry  of  the  howling  pack, 
On  the  wings  of  the  night,  brings  the  hunter  delight, 

For  the  dogs  are  now  hot  on  the  track. 


is  Flotsam  and  Jetsam 

But  Reynard  was  ever  a  sly  old  fox, 

And  he  deals  in  deepest  disguise ; 
In  the  midst  of  the  chase,  an  arch  smile  on  his  face, 

He  takes  to  the  railroad  ties. 
The  west-bound  fast  express  was  due  — 

Which  was  probably  known  to  the  fox  — 
Who  now  leaves  his  trail  and  the  scent  on  the  rail, 

Just  to  get  those  dogs  in  a  box. 

So  hound  after  hound,  with  his  nose  to  the  ground, 

As  the  train  thunders  down  the  grade, 
Along  the  track  flies,  fairly  leaping  the  ties, 

Not  suspecting  the  trap  that  was  laid. 
O,  horror  to  relate!  'tis  as  certain  as  fate, 

There'll  be  a  collision,  unless 
One  gets  off  the  track,  or  the  other  goes  back, 

The  dogs  or  the  fast  express. 
With  dogged,  unyielding  persistence,  the  hounds 

Dispute  the  right  to  the  track, 
Till  along  come  the  cars,  like  the  mad  rush  of  Mars, 

And  kill  about  half  of  the  pack. 

Now  the  hunter  who  owned  those  valuable  dogs  — 
Worth  more  because  dead,  I  think  — 

Was  sorely  aggrieved  at  the  treatment  received, 
So  he  sued  the  receiver  —  Fink. 


Fink  v.  Evans 

Grave,  serious,  difficult  questions  of  law 

Rose  before  the  honorable  courts ; 
Fierce  the  battle  was  waged  by  the  counsel  engaged, 

As  we  gather  from  Pickle's  Reports. 
One  very  vexed  question  arose  in  the  case, 

Whether,  under  Tennessee  laws, 
Considering  his  acts  and  all  of  the  facts, 

The  fox  was  the  proximate  cause ; 
For  it  may  be  admitted  that,  if  as  a  fact, 

The  fox  had  not  gone  on  the  track, 
Those  valuable  curs,  it  surely  appears, 

Would  not  have  been  lost  from  the  pack. 

Then  another  difficult  question  arose 

In  the  struggle  to  get  redress, 
In  which  of  them  lay  the  clear  right  of  way, 

The  dogs  or  the  fast  express? 
The  cars  had  the  right  to  the  railroad  track, 

This  point  was  perfectly  plain, 
But  the  right  of  the  pack  on  the  fox's  track 

Clearly  clashed  with  the  right  of  train. 
If  a  track's  on  a  track,  and  a  train  and  a  pack 

Have  both  of  them  rights  of  way, 
Then  the  question  of  right  becomes  one  of  might, 

So  all  the  authorities  say. 

But  what  was  the  value  of  the  dogs  deceased  ? 
A  question  of  dire  import, 


20  Flotsam  and  Jetsam 

And  one  that  was  vexing  and  very  perplexing, 

And  that  worried  the  honorable  court. 
The  proof  of  the  plaintiff  established  the  fact 

That  the  dogs  were  young  and  fleet, 
And  that  while  ev'ry  hound  was  good  "all  round," 

For  the  possum  they  couldn't  be  beat. 
The  plaintiff  himself,  when  he  got  on  the  stand, 

Told  the  twelve  as  they  sat  in  the  box, 
That  a  hound,  as  a  rule,  was  worth  more  than  a  mule — 

That  is  —  for  the  chase  of  the  fox. 
The  defendant  made  light  of  the  proof  thus  adduced, 

As  foolish,  absurd  and  thin, 
And  he  proved  without  doubt  that  hounds  were  without 

Any  value  in  old  McMinn. 

But  the  court,  considering  all  of  the  facts, 

Held  the  hounds  did  not  exercise 
That  care  and  forethought  which  the  law  says  they  ought, 

Thus  causing  their  own  demise ; 
That  a  prudent  hound-dog,  in  a  case  like  this, 

Would  employ  his  gumption  and  brain, 
When  the  whistle  would  blow  he  wouldn't  be  slow 

In  giving  away  to  the  train. 

When  the  plaintiff  was  told  the  result  of  the  suit, 

And  he  figured  the  costs  and  the  fees, 
It  is  thought  then  and  there  the  circumambient  air 

Felt  quite  a  perceptible  breeze. 


Fink  v.  Evans  21 

When  further  informed,  in  a  technical  way, 

That  the  learned  Court,  the  Curia, 
Had  decided  his  case  by  applying  the  phrase 

Of  damnum  absqiie  injuria, 
It  is  possibly  true  that  he  said  that  he  knew 

No  Latin  —  and  couldn't  translate, 
But  he  thought  that  he  heard  a  strong  English  word 

In  the  Latin  which  settled  his  fate; 
To  his  feelings  long  pent  he  would  have  to  give  vent, 

And  he  did  it  without  any  qualm, 
For  his  feelings  were  best  and  most  clearly  expressed 

In  that  Latin's  first  syllable  —  damn. 


Confession  and  Avoidance 

IT  created  a  sensation  in  the  Darktown  congregation, 
When  Ezekiel  said  he  wished  to  be  a  saint ; 
And  the  members  all  asserted  that  "when  'Zekiel 

got  converted, 

'Twas  enough  to  make  the  very  Devil  faint." 
But  they  took  him  on  probation  to  accomplish  his  sal 
vation, 

They  exhorted  him  a  better  life  to  lead ; 
Notwithstanding  this,   howe'er,  he  was  summoned   to 

appear 
To  the  charge  of  dancing  —  deadly  sin  —  to  plead. 

"I  iz  come  befo'  de  Session,  fo'  to  make  you  my  con 
fession," 

Said  Ezekiel,  with  a  solemn  countenance; 
"I  distinctly  recollects  all  dem  solemn,  wahnin'  texts, 

Dat  you  coted  'bout  de  gamblin'  an'  de  dance; 
How  dat  when  I  got  de  'ligion,  show'  I  mustn't  cut  de 

pigeon- 
Wing  no  mo';  an'  dat  dancin',  'twas  de  Debbil's  own; 
Dat  'Come  seben,  come  eleben,'  wouldn't  take  me  up  to 

Hebben  — 
An'  I  vow'd  dat  I  would  leabe  'em  all  alone. 


Confession  and  Avoidance          23 

"Zi  wuz  stridin'  an'  a-reachin',  an  a-comin'  to  de  preach- 
in', 

In  a  mighty  hurry,  night  or  two  ago, 
On  a  sudden  I  wuz  facin'  an  open  doo'  adjacen', 

Down  dar  in  de  Pickaninny  Row; 

Zi  wuz  in  de  doo'  a-glancin',  I  cud  see  dey's  gwyne  to 
dancin', 

(An*  my  bredren,  all  dem  gals  dey  fahly  shine!)  - 
As  dey  wuz  'bout  to  begin  it,  jes'  allows  I'll  stop  a  minute, 

As  dey  passes  up  an'  down  de  dancin'  line. 

"Den  de  fiddle  'gins  to  singin'  an'  de  banjo  'gins  to 

ringin', 

An'  de  promptah,  he  shouts,  'S'lute  an1  balance  fo\ 
An'  dem  niggahs  go  paradin'  wid  dey  pahtnah's  promo- 

nadin', 

An'  dey  chassees  back  and  foth  across  de  flo; 
As  de  promptah  calls  de  figgahs,  like  a  wave  uv  sea  dem 

niggahs 

Sweeps  across  an*  back  an*  thru  so  vehey  neat, 
Sho  —  I  tells  you,  pahson,  truly,  dat  I  gits  somewhat 

unruly, 
An*  I  feels  a  sudden  fidgets  in  ma  feet. 

"Den  dey  wahms  up  to  de  dancin',  all  retirin'  an'  ad- 

vancin', 
An'  dey  stahts  into  de  Ole  Virginny  Reel, 


24  Flotsam  and  Jetsam 

Den  dey  'gins  to  dance  de  hoedown,  growin'  gradual  to 

de  breakdown  — 

(You  can  imagine,  bredren,  how  dis  niggah  feel!) 
Den  de  music  libely  growin',  all  de  instruments  a-goin', 

An'  de  ragtime  floats  upon  de  air  so  sweet, 
Dat  dis  niggah  den  detected  dat  his  nerves  dey  'come 

affected, 
An'  he  can't  control  de  fidgets  in  his  feet. 

"How  it  happens  I'se  no  notion,  but  dis  coon  wuz  soon 

in  motion, 

When  de  promptah,  he  calls  out,  'Gran'  right  an'  lef, 
I  wuz  in  among  dem  niggahs,  an'  a-dancin'  all  de  figgahs, 

(For  in  trufe,  no  coon  can  dance  'em  like  myse'f) ; 
Yes,  I  danced  de  heel-an'  toe,  double  shufflin',  'cross  de 

flo', 

Jig  and  juba,  clog,  an'  den  de  highlan'  fling; 
Den  I  jin'd  in  de  cotillion  —  an',  pahson,  'twuz  wuth  a 

million 
Jes'  to  see  de  way  I  cut  de  pigeon- wing! 

"But  my  bredren  uv  de  Session,  in  considerin'  dis  con 
fession, 

I  des  wahnts  to  tell  you  what  de  lawyahs  say ; 
Dat  no  man  can  be  convicted  and  no  punishment  in 
flicted, 
Whar  de  irresist'ble  impulse  holds  de  sway  — 


Confession  and  Avoidance         25 

Now,  I  hopes  you  ain't  gwyne  doubt  it,  when  I  say  I'se 

sorry  'bout  it, 

Yes,  suhs,  dreffle  sorry,  bredren,  I  repeat; 
But  I'se  not  guilty,  I'se  msistin',  kase  no  possible  re- 

sistin' 
Can  ovahcome  de  fidgets  in  de  feet." 


The  State  v.  Linkhaw 

(69  N.  C.  214.) 

An  ignorant,  noteless,  timeless,  tuneless  fellow. 

—  BYRON. 

FOR  disturbance  of  the  public  worship," 
So  the  indictment  read, 
"Against  the  peace  and  dignity 
Of  the  state,"  it  further  said. 
To  which  indictment  there  was  filed 

Defendant's  plea,  to  wit: 
That  said  Linkhaw  had  broke  no  law, 
And  he  should  go  acquit. 

The  crime  so  charged  was  that  the  accused, 

Lacking  musical  education, 
Sang  psalm  and  hymn  with  such  a  vim 

He  disturbed  the  congregation; 
That  when  the  choir  and  ohters  all, 

('Twas  one  of  the  devil's  wiles), 
Had  ceased  to  sing,  still  Linkhaw's  voice 

Went  sounding  down  the  aisles. 

And  it  was  charged  and  duly  proved, 
That  when  Linkhaw  elected 


The  State  v.   Linkhaw  2? 

To  sing  at  all,  the  people  all 

Were  curiously  affected ; 
The  frivolous  folk  thought  it  a  joke, 

And  laughed  and  were  quite  gay, 
While  the  devout  were  so  put  out 

And  mad  —  they  could  not  pray ; 
The  parson,  it  was  duly  proved, 

Would  not  give  out  the  hymn, 
For  fear  'twould  draw  from  Bill  Linkhaw 

The  horrid  voice  of  him; 
The  presiding  elder,  too,  'twas  said, 

Most  positively  refused 
To  rome,  for  fear  that  he  would  hear 

The  voice  of  the  accused. 

The  defendant  proved  himself  devout, 

And  that,  though  sinful  clay, 
Himself  he  found  in  conscience  bound, 

To  sing  as  well  as  pray ; 
Moreover,  the  constitution, 

Aside  from  moral  qualms, 
Did  guarantee  his  worship  free 

In  singing  hymns  and  psalms. 

The  jury  found  against  the  accused, 

That  he,  in  his  devotions, 
Lest  he  disturb,  must  gently  curb 

His  musical  emotions ; 


28  Flotsam  and  Jetsam 

That  he  his  worship  could  maintain, 

But,  like  the  curfew's  ring, 
Though  he  could  shout  and  be  devout, 

That  Linkhaw  must  not  sing. 

But  'twas  held  by  the  court  of  last  resort, 

To  which  the  case  then  went, 
That  in  Linkhaw  the  judges  saw 

No  criminal  intent ; 
And  that,  although  the  proof  did  show 

That  Linkhaw's  voice  was  awful, 
The  judges  found  no  valid  ground 

For  holding  it  unlawful. 

And  so  in  North  Carolina  now, 

Regardless  of  church  or  creed, 
The  right  inalienable  to  sing 

Is  fully  guaranteed ; 
And  from  the  Smokies  to  the  Sea, 

Wherever  the  church  bells  chime, 
The  people  cling  to  the  right  to  sing, 

Without  committing  a  crime. 


The  Opinion 


THERE  is  silence  in  the  courtroom, 
And  the  lawyers  in  array, 
Sitting  quietly  expectant, 

For  it  is  opinion  day ; 
All  the  lawyers  look  so  anxious 

And  so  nervous-like  beside, 
You'd  conjecture  from  their  faces, 

That  the  bar  was  being  tried ; 
Dignified  and  proud,  his  Honor, 

With  a  supercilious  smile, 
Looks  relentless  on  his  victims, 

As  he  fingers  with  the  file ; 
Then  he  launches  his  opinion 

In  the  case  of  plaintiff  Doe, 
'Gainst  my  client,  the  defendant, 

By  the  name  of  Richard  Roe. 

First,  methinks  I  have  detected 
Intimations  —  just  a  trace  — 

Of  a  leaning  toward  defendant, 
As  his  Honor  states  the  case ; 

As  he  threads  the  tangled  mazes, 
Of  the  facts  and  of  the  law, 


30  Flotsam  and  Jetsam 

Pointing  out  the  plaintiff's  laches, 

Picking  here  and  there  a  flaw, 
Then  my  nerves  become  more  quiet, 

And  a  smile  creeps  o'er  my  face, 
For  I'm  feeling  fairly  sanguine 

That  I  may  have  won  the  case; 
But  then,  just  as  I'm  feeling 

That  I  am  about  to  get 
A  decision,  then  his  Honor 

Thunders  forth  the  words:   "But  yet  — " 

What  was  sunshine  now  is  shadow, 

And  the  smile  fades  from  my  face, 
As  his  Honor,  growing  serious, 

Freely  comments  on  the  case; 
As  he  quotes  from  the  citations, 

And  the  evidence  he  weighs, 
'Tween  the  plaintiff  and  defendant, 

Like  a  pendulum  he  sways ; 
With  the  seeming  vacillations, 

Hope  and  prospects  rise  and  fall, 
I'm  so  flustered  with  the  fidgets, 

I  can  scarce  sit  still  at  all ; 
Then  his  Honor  summarizes, 

And,  discussing  the  relief, 
Calls  me  learned,  able  counsel, 

And  he  compliments  my  brief; 


The  Opinion  31 

Me  he  lauds  and  eulogizes, 

With  such  kindliness  and  grace, 
That  my  spirits  sink  within  me, 

For  I  know  I've  lost  the  case. 

There's  a  law  of  compensation, 

Which  the  Courts  all  kindly  heed, 
Just  a  sort  of  consolation, 

Tho'  it's  very  small  indeed ; 
Ever  in  the  Court's  opinions 

You  will  find  it  in  its  place  — 
One  attorney  gets  the  praises, 

While  the  other  wins  the  case. 


The  Lawyer's  Lachrymal  Rights 

Ferguson  v.  Moore,  98  Tenn.  342. 

Inter  dum  lachrymae  ponder  a  vocis  habent. 

—  OVID. 

IN  THE  court  below,  as  the  records  will  show, 
The  plaintiff  a  verdict  obtained, 
On  both  of  the  counts  for  goodly  amounts, 
And  of  this  the  defendant  complained ; 
And  in  order  to  try  to  at  once  rectify 

The  judgment  he  had  to  face, 
And  to  plainly  show  the  errors  below, 
The  defendant  appealed  the  case. 

In  the  record  we  find  this  error  assigned: 

In  a  fit  of  inordinate  zeal, 
The  attorney  shed  tears  before  the  twelve  peers, 

As  he  made  an  impassioned  appeal : 
That  the  tears  that  were  shed  had  surely  misled 

The  jury  as  they  sat  in  their  place, 
Who  with  prejudiced  eye,  and  judgment  awry, 

Had  mistaken  the  right  of  the  case ; 
That  the  jury  was  swayed  —  not  by  arguments  made, 

According  to  the  facts  and  the  laws, 
But  by  sob  and  the  sigh  and  the  moistened  eye, 

And  the  Court  should  reverse  the  cause. 


The  Lawyer's  Lachrymal  Rights     33 

The  question,  in  short,  which  the  Honorable  Court 

Was  asked  to  consider  and  try, 
As  the  records  recite,  was  the  disputed  right 

Of  attorneys-at-law  to  cry : 
And  we  are  advised  that  the  Court  recognized 

The  importance  of  the  question  involved, 
As  in  all  Tennessee  the  whole  bar  would  be 

Affected  by  the  way  it  was  solved. 
We  beg  to  commend  to  every  friend 

Of  the  bar  the  Court's  review 
Of  the  point  in  dispute,  which  arose  in  the  suit, 

And  the  inferences  which  they  drew. 
"Some  lawyers  there  are  (and  they  are  not  very  rare)," 

So  the  opinion  of  the  Court  recites, 
"Who,  with  flowers  and  frills  and  rhetorical  thrills, 

Indulge  in  fanciful  flights; 
There  are  some  who  use  each  of  the  figures  of  speech, 

Quoting  Shakespeare,  Byron  and  Burns, 
And  the  jury  first  gropes  thro'  figures  and  tropes, 

Then  an  adverse  verdict  returns ; 
And  some,  we  confess,  seek  hard  to  impress 

By  noise  and  gesticulation, 
They  rant  and  they  roar,  with  really  more 

Of  lungs  than  argumentation ; 
And  when  the  Court  sees  such  capers  as  these, 

Is  there  really  a  reason  why, 
In  impassioned  appeals,  if  the  lawyer  so  feels, 

He  should  not  be  allowed  to  cry? 


34  Flotsam  and  Jetsam 

So  the  Court  decides,  after  hearing  both  sides, 

And  all  of  the  cases  they  cite, 
When  the  advocate  cries,  he  doth  but  exercise 

His  constitutional  right ; 
And  the  Court  further  finds,  if  the  lawyer  inclines, 

He  may  plaintively  indulge  in  a  sigh, 
And  if  he  commands  his  lachrymal  glands, 

He  may  slightly  moisten  the  eye : 
Or  if  he  elect  to  try  to  affect 

The  jury  so  they  will  feel 
And  be  made  to  see,  as  clearly  as  he, 

The  force  of  his  earnest  appeal , 
He  may  then  shed  a  clear,  round,  beautiful  tear, 

Like  the  morning  dew-drop  on  the  rose, 
And  let  it  beguile  the  jury  the  while 

It  dribbles  from  his  classical  nose; 
Or,  if  he  desire,  and  the  occasion  require, 

In  the  matter  of  a  grievous  wrong, 
Down  his  innocent  cheek  a  diminutive  creek 

May  appealingly  trickle  along: 
Or,  if  he  should  feel  in  the  melting  mood, 

Like  Niobe  or  Rachel,  he  may, 
With  none  to  restrain,  shed  his  tears  like  the  rain, 

And  weep  his  great  soul  away : 
With  the  flow  of  his  tears  no  court  interferes, 

Except  he  must  not  comport 
Himself  in  a  way  to  impede  or  delay 

The  business  and  work  of  the  court." 


The  Lawyer's  Lachrymal  Rights    35 

Now  the  lawyer's  elate  in  the  Volunteer  State, 

Having  passed  a  critical  crisis, 
And  exults  and  delights  that  his  lachrymal  rights 

Are  finally  stare  decisis. 


In  Totidem  Verbis 

THE  defendant  was  charged  with  larceny, 
And,  to  mitigate  the  crime, 
He  put  in  a  plea  averring  that  he 

Was  very  drunk  at  the  time. 
Policeman  Pat,  who  made  the  arrest, 

Was  put  on  the  stand  to  show 
The  statements  which  the  prisoner  made 

Regarding  his  status  quo. 
The  Judge,  examining  the  witness,  asked ; 

"What  was  it  the  prisoner  said?" 
"He  said  he  was  drunk,"  was  Pat's  reply, 

Reproachfully  shaking  his  head. 
"You  do  not  comprehend,  I  fear," 

Said  the  Judge,  as  grave  as  a  monk, 
"He  did  not  use  the  pronoun  he, 

And  didn't  say  he  was  drunk." 
"O  yes  he  did,"  persisted  Pat, 

"As  sure  as  you  are  born, 
The  prisoner  said  that  he  was  drunk, 

He  frankly  acknowledged  the  corn.'" 
"You  don't  understand,"  explained  the  Judge, 

"My  meaning  you  have  confused; 


In  Totidem  Verbis  37 

Now,  didn't  he  say:  '/  am  drunk  — , 

Aren't  those  the  words  he  used?" 
"No  —  no,"  said  Pat,  "I  wouldn't  stand  that, 

I'd  hit  the  spalpeen  skunk, 
And  the  lick  you  bet  he  wouldn't  forget, 

If  he'd  said  your  Honor  was  drunk." 
"O,  pshaw!  O,  pshaw!"  cried  th'  attorney  at  law, 

"What  is  it  that  ails  your  brain? 
His  Honor  means  did  the  prisoner  say, 

'/  am  drunk1  —  now  that  is  plain." 
"Well  now,"  said  Pat,  "when  it  comes  to  that, 

I  would  not  surely  swear, 
But  if  he  said  that  you  was  drunk, 

I'm  sure  I  did  not  hear." 
"The  Court's  desire,"  said  the  lawyer  with  ire, 

Giving  the  witness  a  scowl  and  frown, 
"Is  to  get  in  fact,  the  words  exact, 

Preserving  the  used  pronoun ; 
He  wants  verbatim  et  literatim, 

The  prisoner's  own  words,  to  wit: 
First  person  /  —  not  second,  thou, 

Nor  third,  he,  she  or  it: 
Do  not  evade  the  question  put, 

From  which  till  now  you've  shrunk; 
Now,  on  your  oath  —  did  he  not  say, 

In  haec  verba,  I  am  drunk?" 
"No  —  no,"  said  Pat,  with  an  epithet, 

"Condamit,  he  didn't  betray  it 


38  Flotsam  and  Jetsam 

That  you  was  drunk,  but  now  I  think, 
Seeing  that  you  are  given  to  drink, 
That  you  was  drunk  and  are  so  yet, 
But  I  swear  he  did  not  say  it" 


A  Case  "In  Point" 

Rapid  Transit  Co.  v.  Dew,  100  Tenn.  317. 


fTT^WAS  Autumn  —  killing  frosts  had  stripped 
The  leaves  from  shrub  and  tree ; 

•*•        'Twas  the  season  known  as  nutting  time 

In  Middle  Tennessee; 
The  sun  was  sinking  o'er  the  hill, 

The  shadows  flitted  like 
Fantastic  sprites  from  Fairyland, 

Out  on  the  Charlotte  pike; 
Far  out  of  town  to  where  the  woods 

And  pasture  lands  began, 
Along  the  route  of  the  Charlotte  pike, 

The  Rapid  Transit  ran. 
The  plaintiff,  with  his  hunting  dog, 

Laden  with  nuts  so  brown, 
From  woodlands  and  from  nutting  groves 

Was  coming  back  to  town ; 
With  panting  sides  and  lolling  tongue, 

And  never  looking  back, 
The  plaintiff's  dog  essayed  to  cross 

The  Rapid  Transit  track, 


40  Flotsam  and  Jetsam 

When  just  midway  —  O,  cruel  fate! 

The  dog  became  aware 
Of  scents  indicative  of  birds 

Lading  the  evening  air ; 
He  paus'd  —  and  lifting  one  fore-foot, 

And  stiffening  out  his  tail, 
He  snuffed  and  pointed  with  his  nose, 

As  if  he  scented  quail ; 
He  stood  as  if  bewitched,  entranced, 

Without  a  stir  or  motion, 
As  still  as  is  "a  painted  ship 

Upon  a  painted  ocean." 


The  car  was  coming  down  the  track — 

The  witnesses  all  state 
That  it  was  whirling  toward  the  dog 

At  a  very  rapid  rate ; 
Unless  it  stopped,  or  unless  the  dog 

Should  give  way  to  the  car, 
They  would  collide  —  and  thus  make  work 

For  members  of  the  bar ; 
The  canine  took  a  dogged  stand, 

And  little  did  he  reck 
The  coming  Rapid  Transit  car, 

Like  the  boy  on  the  burning  deck ; 
Ancestral  instincts,  stronger  far 

Than  fear,  held  free  control, 


A  Case   t4In  Point"  « 

The  sweet,  delicious  scent  of  birds, 

Ravish'd  his  canine  soul. 
There  was  a  collision  —  sad  to  tell  — 

Which  fate  would  not  avert ; 
The  dog  received  a  fatal  wound, 

The  car  escaped  unhurt. 

Was  this  the  last  of  the  injury 

And  wrong  that  had  been  done? 
O,  no,  for  with  the  dog's  decease, 

The  trouble  had  just  begun. 
The  plaintiff  sued  defendant  for 

The  sum  he  said  it  owed, 
The  value  of  the  dog  it  killed, 

Out  on  the  Charlotte  road. 

Defendant  made  a  bold  defense, 

And  sought  to  win  the  case, 
By  showing  that  dogs  are  valueless, 

And  most  of  them  are  base ; 
And,  further,  at  the  common  law, 

As  all  the  courts  decide, 
'Twas  not  a  theft  to  steal  a  dog, 

Tho'  'twas  to  steal  his  hide; 
The  inference  from  all  of  which 

The  Court  would  promptly  draw, 
Is  that  dead  dogs  are  better  far 

Than  live  ones,  at  the  law. 


42  Flotsam  and  Jetsam 

The  plaintiff,  Dew,  denied  that  dogs 

Are  worthless,  mean  or  base, 
And,  as  a  proof  of  what  he  plead, 

He  cited  many  a  case. 
He  pointed  to  the  snow-clad  Alps, 

Where  travellers  in  the  snows 
Are  rescued  by  the  St.  Bernard 

As  everybody  knows ; 
He  said  the  Indian  welcomes  death, 

Because  he  thinks  his  hound 
Will  meet  him  in  the  Great  Beyond, 

The  Happy  Hunting  Ground ; 
He  pictured  wife  and  children  dear, 

From  harm  and  danger  kept 
By  the  faithful  watch -dog  sentinel, 

Guarding  them  while  they  slept ; 
Many  a  time  in  the  silent  night, 

When  dangers  haunt  the  dark, 
The  timid,  sinking  heart  is  cheered, 

To  hear  the  watch-dog  bark. 
He  showed  where  Alva's  bloody  men, 

One  night  on  murder  bent, 
Stole  forth  to  where  the  Prince  of  Orange 

Was  sleeping  in  his  tent; 
The  sentries  were  surprised  and  taken, 

The  guards,  detailed  to  keep, 
Protect  and  shield  the  royal  Prince, 

Were  lying  fast  asleep ; 


A  Case  "In  Point11  43 

But  there  was  one  within  the  tent 

Watchful  and  wide  awake; 
A  sentinel  that  ne'er  was  known 

His  duty  to  forsake. 
A  little  dog  gave  the  alarm, 

And  woke  the  Prince  —  who  then 
Fled  and  escaped  a  cruel  death 

From  Alva's  bloody  men ; 
And  thus  the  course  of  history, 

Affecting  the  human  race, 
Was  changed  by  a  faithful,  little  dog, 

Now  stigmatized  as  base! 

Defendant  claimed  that  plaintiff's  dog 

Was  base-born,  and  the  strains 
Of  common,  cur-like,  mongrel  blood 

Went  coursing  thro'  his  veins ; 
That  there  was  "terrier"  blood  in  him, 

Of  proof  there  was  no  lack, 
This  fact  was  made  conclusive  when 

He  tarried  on  the  track. 

The  members  of  the  bar  well  know, 

And  none  will  controvert, 
The  fact  that  none  but  blooded  dogs 

Are  ever  badly  hurt ; 
And  in  this  case  the  dog  of  Dew, 

Supporting  the  plaintiff's  claim, 


44  Flotsam  and  Jetsam 

Proved  no  exception  to  the  rule, 

But  emphasized  the  same. 
The  dog  deceased  exhibited 

A  noble  pedigree; 
In  canine  circles,  it  was  plain, 

He  was  an  F.  F.  T. ; 
His  sire  was  "Tribulation  I," 

In  field-trials  ever  afront, 
In  bench-shows  facile  princeps,  and 

The  champion  of  many  a  hunt ; 
His  grandsire  was  the  King  of  dogs, 

"Imperial  Beppo  III," 
No  better  dog  e'er  set  a  hare, 

Or  e'er  retrieved  a  bird ; 
In  him  there  flowed  the  best  blue  blood 

Of  "Champion  Lass  of  Bow," 
From  her,  no  doubt,  there  is  derived 

That  classic  word  bowwow; 
And  every  dog  that  opes  his  mouth 

Must  pay  a  tribute  to 
Th'  ancestress  of  the  plaintiff's  dog, 

Whose  royal  blood  was  blue ; 
For  many  generations  back 

He  traced  his  pedigree, 
With  English  dog-nobility 

Upon  his  family  tree. 
The  dog  deceased  was  handsome,  fast, 

And  the  records  all  disclose, 


A  Case   "In  Point"  45 

He  had  the  widest  sort  of  range, 

And  the  keenest  sort  of  nose ; 
He'd  had  distemper,  and  this  fact, 

The  witnesses  all  swore, 
Did  not  detract  from  him  at  all, 

But  made  him  worth  the  more. 

The  Court  held,  on  defendant's  part, 

Of  care  there  was  a  lack, 
And  that  the  plaintiff's  dog  was  not 

A  trespasser  on  the  track, 
And,  further,  that  the  Court  would  not 

The  course  of  justice  clog, 
E'en  tho'  they  viewed  the  record  from 

The  stand-point  of  the  dog. 

Some  points  decided  by  the  Court 

Our  wonderment  command, 
To  wit:  That  when  a  setter  "sets," 

He  is  decreed  to  "stand"; 
And  when  he's  "standing,"  strange  to  say, 

'Tis  just  as  surely  true, 
Suspending  all  of  physic's  laws, 

That  dog  is  "setting"  too; 
A  paradox  —  the  reason  gropes 

In  intellectual  fog, 
And  yet  the  "point"  is  very  clear, 

When  one  observes  the  dog. 


46  Flotsam  and  Jetsam 

There  was  another  subtle  point :  — 

Whether,  under  the  laws, 
The  scent  of  birds  was  not  at  least 

A  quasi-producing  cause; 
But  the  honorable  Court  refused  to  pass 

Upon  the  point,  we  note, 
Because,  no  doubt,  they  reasoned  that 

The  scent  was  too  remote. 

The  jury  gave  the  plaintiff  all 

He  claimed  on  every  count, 
The  Court  most  properly  refused 

To  curtail  the  amount ; 
And  thus  the  ancient  common  law 

Was  changed  and  modified, 
And  now  at  law  a  living  dog 

Is  worth  more  than  his  hide. 
While  in  this  case  there's  not  a  trace 

Of  poetry  refined, 
'Tis  yet  most  fitting  it  should  be 

In  dog-gerel  enshrined. 

Sometimes  the  lawyer's  sore  perplexed, 

When  coming  face  to  face, 
With  no  authorities  at  all 

To  bolster  up  his  case; 
To  such  we  ope  the  door  of  hope, 

And  offer  full  relief, 


A  Case    'In  Point1 

And  nevermore  need  he  present 

In  court  a  caseless  brief. 
No  matter  if  both  law  and  facts 

Are  wholly  out  of  joint, 
The  Dew  case  may  be  cited  as 

A  case  always  "in  point.11 


47 


Ezekiel's  Alibi 


Oil,  Sammy,  Sammy,  vy  wornt  there  a  alleybi? 

—  TONY  WELLER. 

NOW,  accordin'  to  dis  'ditement, 
As  I  heahs  it  read  to  me, 
I  has  stole  a  watah-milyun, 
Which  dey  say  am  lahceny ; 
Dat  I  also  tuk  a  roostah, 

(So  I  understan'  it's  writ), 
Likewise  sundry  'n  divahs  pullets, 
On  a  sartin  time,  to  wit; 

"An,  yo'  Honah  axes  'Zekiel 

Des  to  state,  in  his  own  way, 
'Bout  de  chawges  brought  agin  him, 

Eb'rything  he  hab  to  say; 
So  dis  niggah,  as  requested, 

'Fo'  de  jury  an'  de  jedge, 
Say  he  sartin  am  not  guilty, 

As  de  'ditement  dar  allege. 

"Ef  Ole  Zeke  wah  stealin'  chickens, 
On  a  sartin  time,  to  wit, 


EzekiePs  Alibi  49 

Den  he  wah  not  pullin'  milyuns, 

Sho  —  dis  here  you  mus'  admit; 
'N'  ef  he  on  dat  time,  to  -wit, 

(To  de  Cou't  I  does  appeal), 
Wah  a-takin'  watah-milyuns, 

He  wah  on  no  chicken  steal ; 

"Foh  it  is  a  fac',  yo'  Honah, 

Dat  de  milyun,  full  ob  juice, 
Nevah  perch  hisse'f  wid  pullets, 

Way  up  on  de  chicken-roos' ; 
An'  de  chicken  say  it  isn't 

Des  ezacly  in  his  line 
Foh  to  be  diskivered  growin' 

On  de  watah-milyun  vine; 

"So,  it  'pears  to  me,  yo'  Honah, 

When  dis  'ditement  chawge  so  loose, 
Dat  dis  naggah's  in  de  milyun-patch, 

He  is  at  de  chicken-roos' ; 
When  it  say  he's  stealin'  chickens, 

Sho  —  it's  plain  dat  he's  not  nigh, 
Kaze  he's  den  among  de  milyun  vines  — 

So  I  pleads  de  alibi" 


Liberal  Construction 

Baker  v.  Jacobs,  64  Vermont  197. 

IT  WAS  in  the  state  where  the  Green  Mountains  are, 
And  the  dappl'd-veined  marbles  abound, 
That  it  was  ordained  when  a  party  had  gained 
A  verdict  the  jury  had  found, 
If  the  party  successful,  during  the  term, 

At  which  the  case  was  tried, 
Should  treat  a  juror  to  "victuals  or  drink," 
They  must  set  the  verdict  aside. 

In  a  judicial  bout,  the  plaintiff  won  out, 

And,  thanking  his  lucky  stars, 
And  thinking  the  jury  their  duty  had  done, 

He  treated  them  to  cigars. 
So  the  question  arose,  as  the  records  disclose, 

As  to  whether  the  law  was  broke, 
And  whether  the  act  'gainst  "victuals  and  drink" 

Included  as  well  a  smoke. 

The  plaintiff  averr'd  that  it  was  absurd 

To  attempt  to  remotely  link 
A  thing  that  indeed  is  naught  but  a  weed 

With  such  as  "victuals  and  drink"; 


Liberal  Construction  51 

He  further  averr'd  that  drink  is  a  word 

That  everywhere  is  described 
By  all  who  have  writ  thereon  that  it 

Is  something  to  be  imbibed ; 
He  said  that  to  yoke  "victuals"  with  smoke 

Was  surely  a  queer  conceit ; 
That  he  had  been  taught,  and  that  he  yet  thought 

That  victuals  were  something  to  eat. 
He  pictured  the  lad  —  his  first  smoke  he  had  — 

His  face  as  pale  as  a  sheet, 
Telling  stern  papa  and  his  fond  mamma 

It  was  only  the  victuals  he'd  eat; 
Then  a  picture  he  drew  of  men  in  the  pew 

Repeating  the  Apostles'  Creed, 
And,  altho'  devout,  emitting  about 

A  very  strong  scent  of  the  weed : 
And  he  said  he  opined  if  ladies  refined, 

To  show  the  disgust  they  felt, 
Should  apply  vinaigrettes  and  mild  epithets, 

They'd  be  told  it  was  "victual"  they  smelt. 
"What  might  we  expect  would  be  the  effect," 

The  attorney  for  the  plaintiff  said, 
"If  it  were  decreed  by  the  Court  that  the  weed 

Is  victuals  like  meat  and  bread?" 
"And  a  drink  must  be  a  liquid,"  said  he, 

"And  the  law  would  be  but  a  joke, 
If  the  Court  should  decree  that  a  drink  could  be 

Construed  as  a  sort  of  a  smoke." 


52  Flotsam  and  Jetsam 

But  the  learned,  dignified,  honorable  Court, 

When  they  came  the  case  to  decide, 
Held  the  law  had  been  broke  by  a  treat  to  a  smoke, 

And  they  set  the  verdict  aside. 
They  held  it  a  fact  that  when  the  said  act 

Was  passed  —  most  certainly 
To  "drink  tobacco"  was  a  phrase  well  known, 

As  common  as  drinking  of  tea ; 
That  "drinking  tobacco"  was  no  new  thing, 

As  the  poets  were  well  aware, 
And  they  cited  Spenser,  and  Dryden  and  Pope, 

And  old  Ben  Jonson  rare. 
The  Court  next  told  of  a  poet  of  old, 

Who  wrote  with  a  masterly  pen : 
"Thus  thinke  then  drinke  tobacco"  —  they  said 

This  showed  it  was  common  then ; 
They  quoted  Joachin  Miller  also, 

Where  he  says:  "I  drink  the  winds"  — 
If  true,  then  indeed  you  can  drink  of  the  weed, 

And  they  said,  —  "The  Court  so  finds." 
So  it  now  matters  not  just  exactly  what 

Other  honorable  Courts  may  think, 
In  the  Green  Mountain  land  the  Courts  understand, 

And  they  hold  that  tobacco's  a  drink. 


Wenninger  v.  Mitchell 

1225.  W.  Rep.  1130. 

Jam  protervo 

Fronte  petit  Lalage  maritum. 

— HORACE. 

IN  THE  state  of  Missouri,  where  they  "have  to  be 
shown," 
Dwelt  the  plaintiff,  a  widow,  forlorn  and  alone; 
So  lonely  indeed  that  she  sought  for  a  mate 
To  give  her  relief  from  the  widowhood  state; 
She  was  prompted,  therefore,  to  at  once  advertise 
For  a  man,  (for  an  Adam  to  share  paradise). 

Way  up  in  the  state  where  flows  the  broad  Platte, 

Dwelt  an  unmarried  man,  but  "a  man  for  a'  that." 

While  gloomily  brooding  o'er  a  bachelor's  fate 

He  saw  the  lone  widow's  "ad"  for  a  mate; 

Whereupon  his  emotions  were  fully  astir,  — 

As  the  record  is  silent  we  cannot  aver 

Whether  Cupid  let  fly  a  love-dealing  dart, 

Or  whether  'twas  Mammon  affected  his  heart; 

At  least  he  was  willing,  like  Barkis,  and  glad 

To  treat  with  the  widow  —  so  he  answered  the  "ad." 


54  Flotsam  and  Jetsam 

Now,  though  the  lone  plaintiff  was  of  husband  bereft, 

Her  sorrow  was  softened  by  the  money  he  left, 

By  means  of  all  which  the  widow  was  able 

To  buy  a  half  interest  in  a  livery  stable. 

This  she  bought  from  defendant,  to  whom  there  was  paid 

The  money  which  Skinner,  the  husband,  had  made. 


The  record  discloses,  so  we  understand, 

That  the  widow  could  not  write  a  very  plain  hand, 

And  so  she  employed  the  defendant  to  write 

Some  letters  of  love  that  would  tend  to  excite 

The  man  by  the  Platte,  who,  'twas  hoped,  would  be 

pleased 

To  fill  the  void  made  by  Skinner,  deceased; 
And  she  promised  to  give  the  defendant,  we  note, 
Her  half  of  the  stable  for  the  letters  he  wrote. 


In  short,  the  widow  was  willing  to  trade 
Her  half  of  the  stable  for  the  liveryman's  aid 
In  getting  a  husband  to  take  Skinner's  place  — 
And  we  gather  from  reading  the  facts  of  the  case, 
That  she  thought  it  was  fair  and  perfectly  right, 
(Since  the  hair  of  the  dog  is  good  for  the  bite), 
That  the  money  of  Skinner  —  degrading  pelf  — 
Should  purchase  a  husband  as  good  as  himself. 


Wenninger  v.  Mitchell  55 

Vainglorious  man,  with  haughty  brow, 
Where  are  your  pride  and  your  vanity  now! 
When  it's  shown  beyond  a  reasonable  doubt 
That  the  women  at  least  have  found  you  out, 
And  the  half  of  a  livery  stable  can 
Be  traded  off  for  the  average  man! 

And  so  it  was  soon  agreed  by  the  twain 

That  each  would  the  heart  of  the  other  enchain, 

And  with  no  obstructions  to  go  between, 

They  would  swap  their  affections  "sight  unseen." 

And  these  gentle  lovers  —  as  lovers  ought  — 

Had  two  separate  souls,  but  a  single  thought, 

And  ere  the  courting  by  letter  was  done 

These  two  loving  hearts  were  beating  as  one  — 

One  in  Nebraska,  along  by  the  Platte, 

In  Missouri  the  other,  going  fast  pit-a-pat: 

And  in  order  to  plight  her  love  with  a  vow, 

The  widow,  together  with  defendant  and  frau, 

Journeyed  to  Lincoln  where  (Skinner  forgot!) 

She  was  tightly  tied  with  a  nuptial  knot. 

The  pair's  honeymoon  had  scarcely  begun 

When  defendant  asked  pay  for  the  work  he  had  done; 

For  the  services  rendered  he  asked  for  a  deed 

For  half  of  the  stable,  as  they  had  agreed. 

But  when  the  fast  fleeting  honeymoon  waned, 

The  plaintiff  very  quickly  her  reason  regained ; 


56  Flotsam  and  Jetsam 

The  request  then  received  an  emphatic  dissent 
By  refusing  to  pay  the  defendant  a  cent ; 
And  the  benedict  then,  and  his  buxom  bride, 
Brought  suit  and  they  asked  the  Court  to  decide 
Whether  the  livery  stable  as  pledged 
Should  be  given  up  for  the  service  alleged. 

We  cannot  discover,  as  the  record  is  mute, 
The  proximate  cause  for  bringing  the  suit  — 
Whether  the  husband  was  angry  and  sore 
That  his  value  was  thought  to  be  nothing  more 
Than  a  livery  stable  • —  or  whether  'twas  so 
That  the  widow  had  doubts  of  a  quid  pro  quo. 

The  defendant  prayed  the  Court  to  note 

The  quality  of  the  letters  he  wrote ; 

A  fact  no  one  could  controvert, 

Because  of  the  husband  he  made  profert. 

The  plaintiff  contended  the  agreement  was  void 

Because  of  the  fact  that  she  had  employed 

The  defendant  to  get  a  husband  for  her, 

And  she  was  advised,  and  so  would  aver, 

That  it  was  against  the  public  good 

And  the  common  weal  that  people  should 

Attempt  by  agreement  to  interfere 

With  matters  that  are  wholly  in  Cupid's  sphere; 

That  no  valid  contract  could  be  made 

That  contemplated  such  a  vicious  trade  — 


Wenninger  v.   Mitchell  57 

Trafficking  in  the  affairs  of  the  heart, 

Like  so  much  merchandise  sold  in  the  mart. 


The  defendant  replied  that  if  it  were  true 

That  the  contract  was  void  —  from  his  point  of  view, 

The  plaintiff  could  not  maintain  her  suit, 

Because  to  her  the  law  would  impute 

The  same  moral  wrong  —  and  in  the  same  way  — 

In  pari  delicto,  as  the  lawyers  would  say  — 

That  if  it  was  wrong  for  him  to  agree 

To  get  her  a  husband  —  then  certainly  she 

Was  equally  guilty  —  he  wished  to  aver  — 

In  agreeing  that  he  get  a  husband  for  her; 

That  equity  would  never  enforce  her  demands 

Since  she  came  into  court  with  unclean  hands. 

But  the  honorable  Court,  with  clear  insight, 
Gravely  decided  that  the  plaintiff  was  right ; 
That  the  consideration  agreed  to  be  paid 
Was  evidence  of  an  unconscionable  trade. 
That  Courts  of  Justice  would  surely  be  mocked, 
And  the  conscience  of  Courts  be  sorely  shocked, 
If  the  half  of  a  livery  stable  could  be 
Passed  to  defendant  by  solemn  decree 
For  a  consideration  so  slight  —  to-wit : 
The  two  short  letters  defendant  had  writ. 


58  Flotsam  and  Jetsam 

'Twas  further  decided  —  so  says  the  report  — 

That  defendant  had  really  no  status  in  court ; 

That  public  policy  would  never  permit 

The  defendant  to  get  a  slight  benefit 

By  the  crafty  use  of  a  trick  or  a  ruse, 

From  any  agreement  that  would  tend  to  confuse 

The  ardent  affections,  that  tenderly  touch 

The  heart,  with  livery  stables  and  such. 

And  the  Court,  moreover,  was  pleased  to  decree 

That  it  wasn't  considered  as  malum  in  se 

For  a  widow  forlorn,  who  had  been  left 

Alone  in  the  world  —  of  husband  bereft  — 

To  seek  in  every  way  that  she  can 

To  get  for  herself  another  good  man. 

And  so  the  lone  widow  a  benedict  got 
And  she  tied  him  up  tight  with  a  nuptial  knot ; 
And  she  got,  furthermore  —  as  it  should  have  been 
A  livery  stable  to  keep  him  in. 


Charging  the  Jury 

UNCLE  RASTUS  was  a  J.  P. 
In  the  Reconstruction  Days, 
And  he  sadly  lacked  experience 

In  the  courts  and  in  their  ways; 
When  the  proof  was  all  completed, 

And  the  arguments  were  thro', 
He  was  in  a  vex'd  dilemma 

As  to  what  was  next  to  do ; 
Then  the  lawyer,  nudging  Rastus, 

As  amicus  curiae, 
Whispered:  "You  must  charge  the  jury, 

And  they  must  your  charge  obey." 
Uncle  Rastus  was  uneasy 

As  he  shifted  in  his  chair, 
And ,  amid  the  deathless  silence, 

Looked  the  picture  of  despair ; 
Glancing  nervously  about  him, 

As  he  slowly  scratched  his  head, 
Peering  sagely  o'er  his  glasses, 

To  the  jury  thus  he  said: 
"Dis  here  case  ain't  been  much  trouble 

To  de  Jestice  Cote,  an'  hence 
I  jes  chawges  dis  here  jury 

Only  dollar  'n  fifty  cents." 


Jus  Mulorum 

Mincey  v.  Bradburn,  103  Tenn.  407. 

\f  •  ^WAS  in  the  early  autumn  time, 

The  summer's  course  was  run, 
•*•       And  yet  there  lingered  summer  days 

Beneath  September's  sun ; 
'Twas  the  witching  time  of  the  aging  year, 

And  the  lazy,  whispering  winds, 
Like  the  sweet,  sad  notes  of  the  dying  swan, 

Went  soughing  thro'  the  pines ; 
The  woodlands  wore  their  golden  garb, 

The  fields  were  russet-brown, 
When  a  mule  resolved  to  leave  the  farm, 

And  go  to  Knoxville  town. 
The  reason  why  the  mule  did  sigh 

And  seek  for  pastures  new, 
He'd  heard,  perhaps,  in  Knoxville  streets 

The  grass  luxuriant  grew. 
And  so  he  went  on  pleasure  bent, 

But  as  he  loitered  round, 
Whom  should  he  meet  upon  the  street 

But  the  keeper  of  the  pound! 
The  cruel  man,  for  such  he  was, 

With  a  cold,  sardonic  smile, 


Jus  Mulorum  ei 


Proceeded  to  arrest  the  mule 

And  put  him  in  durance  vile. 
The  mule,  'tis  said,  was  quite  well  bred, 

And  he  had  never  sunk 
Low  like  some  men,  and  was  not  then 

Disorderly  nor  drunk. 
The  innocent  and  harmless  mule 

Was  arrested  on  the  charge 
Of  breaking  a  law  he  never  saw 

By  simply  running  at  large; 
And  yet  at  large  upon  the  streets, 

Not  molested  in  the  least, 
Walked  many  a  man  more  dangerous  than 

The  inoffensive  beast. 
Were  the  laws  and  rules  applied  to  mules 

Enforc'd,  in  all  details, 
Against  the  men,  we  venture,  then 

'Twould  overcrowd  the  jails. 

As  in  the  pound  the  humble  mule 

Stood  foodless  and  forlorn, 
His  soul  he  sighed  to  the  country-side, 

The  land  of  oats  and  corn; 
The  dear  old  farm,  the  fertile  fields, 

The  meadow-brook  —  the  grass, — 
What  mem'ries  rise  to  tantalize 

A  hungry,  homesick  ass! 


62  Flotsam  and  Jetsam 

As  it  was  true  that  no  one  knew 

Who  owned  the  mule  in  pound, 
They  advertised  in  the  public  prints, 

But  the  owner  couldn't  be  found ; 
The  mule  himself  was  criticised, 

'Twas  claimed  he  knew  quite  well 
His  master's  name  and  his  master's  crib, 

But,  mule-like,  would  not  tell; 
'Twas  said  that  he  was  impolite, 

(And,  possibly,  it  was  true,) 
When  gruffly  he,  most  positively, 

Refused  an  interview. 

The  mule  was  sold  for  a  paltry  sum, 

Just  about  the  amount  of  cost, 
When  the  owner  came  to  prove  his  claim, 

And  sue  for  the  mule  he'd  lost. 
It  seems  the  mule  was  advertised 

For  only  two  short  days, 
A  time  too  short,  the  plaintiff  claimed, 

To  advertise  for  strays ; 
And  any  ordinance  of  a  town, 

In  this  enlightened  land, 
That  fix'd  such  rules  for  straying  mules, 

Was  void  and  could  not  stand. 

In  another  way,  he  wished  to  say, 
(The  Court  should  be  advised,) 


Jus  Mulorum  63 

It  was  quite  clear  the  mule  was  ne'er 

Sufficiently  advertised ; 
'Twas  only  in  the  Knoxville  Press, 

And  this  fact,  he  was  sure, 
Upon  its  face,  proclaimed  the  place 

Entirely  too  obscure. 

With  subtle  thought  defendant  sought 

The  issues  to  befog, 
By  showing  where  three  days  sufficed 

To  advertise  a  hog ; 
He  argued,  as  a  precedent, 

Citing  the  hog  example, 
That,  if  for  hogs  three  days  sufficed, 

For  mules  two  days  were  ample. 

But  the  Court  o'erruled  defendant's  plea, 

And  settled  and  fix'd  the  rule, 
That  two  days  time  was  not  enough 

To  advertise  a  mule; 
And  giving  way  to  serious  thought, 

Indignant,  questioned  why 
There  should  be  one  law  for  the  stall, 

Another  for  the  sty? 
No,  no  —  the  strong  arm  of  the  law 

Effectually  would  entwine 
Around  the  rights  of  the  humblest  mule 

As  if  the  mule  were  swine ; 


64  Flotsam  and  Jetsam 

And  fain  the  Court  would  drop  a  tear 
For  the  mule,  when  it  was  seen, 

There  ne'er  could  be  posterity 
To  keep  his  memory  green. 

The  Court  released  the  baited  beast 

By  solemn  grave  decree, 
And  as  the  stray  was  led  away, 
'Tis  thought  that  he  was  heard  to  bray : 

"Back  to  the  farm  for  me." 


The  Law  Student's  Soliloquy 

Legis  interpretatio  legis  vim  obtinet. 

I   HAVE  been  through  the  college  and  the  technical 
schools, 
And  somehow,  I  cannot  but  feel, 
When  giving  a  thought  to  the  things  I  was  taught, 

That  I  surely  must  know  a  good  deal ; 
I  can  write  and  can  speak  both  Latin  and  Greek, 

The  stars  and  the  flowers  I  know ; 
Mathematics  I've  mastered  and  logic  I've  learn'd, 

And  the  sciences,  too,  I  trow. 
Notwithstanding  the  knowledge  I  got  at  the  college, 

And  despite  my  master's  degree, 
It  is  true,  without  doubt,  —  why  I  cannot  make  out, 

The  law  is  a  puzzle  to  me. 
I  quite  understand  the  tenures  of  land, 

Estates  that  are  pur  autre  vie, 
Contingent  remainders,  estates  in  tail, 

And  vested  estates  in  fee; 
I  can  understand,  too,  and  clearly  see  through 

Corporations  without  any  soul, 
The  Statute  De  Donis  and  Shelley's  Case, 

And  the  substantive  law  as  a  whole; 


66  Flotsam  and  Jetsam 

But  when  the  Courts  do  begin  to  construe, 

It  clouds  and  befuddles  my  brain, 
There  appears  not  a  spark  as  I  grope  in  the  dark, 

And  I  try  to  see  thro'  it  in  vain. 
When,  for  instance,  I  see  pronounced  a  decree 

From  the  very  highest  court  in  the  land, 
That  a  "lone  widow"  can  be  an  "unmarried  man," 

I  confess  that  I  don't  understand ; 
Then  I  read  from  reports  of  superior  courts 

Of  conservative  little  Delaware, 
Ignoring  the  rules  that  I  learned  at  the  schools, 

That  "two  boots"  don't  make  "a  pair"; 
From  the  old  Dominion  we  have  this  opinion : 

Tho'  a  man  has  departed  this  life, 
In  a  learned  review,  it  is  held  to  be  true 

That  the  "widow"  is  the  dead  man's  "wife"; 
And  up  in  New  York  (the  Empire  State), 

The  Courts  (held  high  in  esteem), 
With  the  reasons  assigned,  most  solemnly  find 

"One  horse"  is  the  same  as  "a  team"; 
And  the  Courts  maintain  in  the  state  of  Maine, 

That  under  the  exemption  laws, 
An  ordinary  "pair  of  work  cattle"  are 

The  same  as  "a  bull"  that  draws; 
And  by  solemn  decree  in  staid  Tennessee, 

The  Courts  have  settled  the  rule, 
That  a  single  "jackass"  of  whatever  class, 
Is  an  "ox,  a  horse  or  a  mule." 


The  Law  Student's  Soliloquy       6? 

Yes,  a  horse  is  a  team,  two  boots  not  a  pair, 

A  widow  is  an  unmarried  man, 
A  bull  is  a  yoke,  an  ass  is  an  ox,  — 

These  decisions  I  study  and  scan 
From  beginning  to  end,  but  I  can't  comprehend, 

So  there's  nothing  for  me  to  do 
But  to  certainly  show  the  status  in  quo, 

And  the  phase  of  the  case  construe. 
There's  a  simple  fact  that  we  cannot  combat, 

And  the  Court  will  judicially  know 
That  a  common  jackass  will  frequently  pass 

For  one  of  the  genus  homo; 
And  anyone  who  can't  clearly  see  thro' 

Decisions  so  perfectly  plain, 
We  are  bound  to  conclude  (with  regrets  alas!) 
Can't  be  anything  but  a  dunce  or  an  ass, 

With  the  chances  that  he's  insane. 


A  Case  of  Locatio 

Moeran  v.    N.    Y.   Poultry  and    Pet   Stock   Association 
(28  Misc.  537). 

THE  plaintiff  was  the  owner  of  a  tailless  Manx  cat, 
Which  she  prized  most  highly,  I  ween, 
And  she  doubtless  thought  that  no  such  Thomas- 
cat 

In  Gotham  ever  was  seen; 
So  she  loaned  to  defendant  this  wonderful  cat 

To  exhibit  in  Madison  Square, 
With  poultry,  canines,  and  pets  of  all  kinds  — 
A  sort  of  a  Donnybrook  Fair. 

But  the  wily  feline  promptly  begged  to  decline 

To  be  subject  to  the  public  gape, 
So  his  bottomless  cage  o'er  the  edge  of  the  stage 

He  pushed  —  and  made  his  escape. 
With  a  clamorous  shout,  the  attendants  turned  out 

In  pursuit  of  the  cat  as  he  fled, 
And  they  looked  everywhere  in  Madison  Square 

For  the  fugitive  cat  aforesaid ; 
They  looked  for  his  track  and  they  searched  every  crack 

In  all  of  the  buildings  around, 


A  Case  of  Locatio  69 

And  then  they  looked  thro'  part  of  Fifth  Avenue, 

But  the  cat  was  not  to  be  found ; 
For  the  Manx  meanwhile,  with  a  cat-like  smile, 

Had  succeeded  in  hiding  his  trail, 
For  no  one  could  know  that  he  came  from  the  show, 

For  this  cat  he  carried  no  tail. 

When  the  plaintiff  found  out  that  the  cat,  without  doubt, 

Was  lost  —  tho'  to  memory  dear  — 
She  promptly  brought  suit  for  the  loss  of  the  brute, 

And  defendant  was  forced  to  appear. 
The  plaintiff  proved  that  to  buy  such  a  cat 

What  a  good  round  sum  it  would  cost, 
And  proceeded  to  show,  what  we  very  well  know, 

It's  the  valuable  cat  that  is  lost. 
In  truth  she  proved  that  this  particular  cat 

Had  never  been  known  to  fail 
To  win  the  first  prize  for  beauty  and  size, 

Tho'  he  hadn't  the  sign  of  a  tail ; 
She  averred  that  the  Court  would  judicially  know, 

In  a  matter  involving  felines, 
That  a  cat  from  the  ranks  of  the  marvelous  Manx 

Was  superior  to  all  other  kinds ; 
She  would  furthermore  say  that  the  defendant  should  pay, 

As  a  matter  of  justice  and  right, 
Quite  a  sum,  she  opined,  for  her  anguish  of  mind 

For  Zenda  —  as  the  cat  was  hight ; 


70  Flotsam  and  Jetsam 

"E'en  now,"  she  exclaimed,  "poor  Zenda,  perhaps, 

Is  wandering  about  in  the  streets, 
And  wherever  viewed  is  being  pursued 

By  every  dog  that  he  meets ; 
Or  what  is  worse  yet,  perhaps  he  has  met 

A  horrible  death  —  and  his  lot 
Is  to  have  been  made  into  sausage  for  trade 

To  the  wily  Chinese  on  Mott." 

"There  can  be  no  relief,"  plead  defendant  in  brief, 

"For  the  very  good  reason,  to  wit: 
That  there  is  no  doubt  that  the  cat  was  loan'd  out, 

At  the  risk  of  the  owner  of  it." 

But  the  Court  held  that  tho'  the  contract  did  show, 

A  fact  to  the  plaintiff  well  known, 
That  the  cat  was  put  there  in  Madison  Square 

At  the  risk  of  the  plaintiff  alone; 
And  while  (the  Court  said)  against  the  fact  plead 

Of  proof  there  was  scarcely  an  atom, 
Notwithstanding  the  plea,  it  was  easy  to  see 

'Twas  clearly  a  case  of  Loca/um. 
So  against  the  bailee  there  was  passed  a  decree 

For  the  sum  of  fifty  dollars  and  cost, 
Which  sum  the  Court  thought  the  company  ought 

To  pay  for  the  cat  that  was  lost. 


A  Case  of  Locatio  71 

The  Court's  said  decree  against  the  bailee 

Brought  the  case  to  a  close  —  so  that 
With  the  lines  we  have  penned  we  have  come  to  the  end 

Of  the  tale  of  a  tailless  cat. 


Golf  versus  Law 

IN  THE  Court  of  St.  Andrews  in  the  County  of  Fife, 
In  the  land  of  the  bonny  Scot, 
There   long   has   been  pending,  many  counsel  de 
fending, 

A  case  of  some  moment,  I  wot. 
In  very  many  places  there  are  ancillary  cases, 

The  style  is  Golf  versus  Law, 
The  principles  involved  have  never  been  solved, 
And  the  case  at  times  looks  like  a  draw. 

It  seemed  at  one  time,  in  the  dark  ages  past, 

When  the  lawyers  didn't  know  very  much, 
That  the  plaintiff  would  fail,  and  the  law  would  prevail, 

In  the  days  of  Lord  Eldon  —  and  such ; 
And,  as  strong  evidence  of  their  ignorance  dense, 

An  item  or  two  will  suffice: 
Littleton  and  Coke  and  other  such  folk, 

Didn't  know  a  "bad  pull"  from  a  "slice," 
And  as  for  Lord  Eldon,  and  Mansfield  and  Brougham, 

And  Marshall  and  Chancellor  Kent, 
With  all  of  their  lore,  if  they'd  heard  the  word  "fore," 

They  would  not  have  known  what  it  meant. 


Golf  versus  Law  73 

And  O,  there  is  such  a  tender  touch 

Of  compassion  and  pity  that  pall, 
When  we  know  it  is  true  that  they  liv'd  their  lives  thro', 

And  ne'er  knew  "Colonel  Bogey"  at  all! 
And  sorrows  there  are  for  the  grief-stricken  bar, 

Sounding  the  depths  of  the  soul, 
To  know  that  they  died  and  to  them  was  denied 

The  mysteries  of  the  "nineteenth  hole." 

But  times  have  changed  since  those  dark  days, 

And  they  have  wrought  changes  in  men, 
And  the  brief-making  clan,  well  up  in  the  van, 

Have  learned  a  whole  lot  since  then. 
And  now,  what  do  we  all  of  us  see ! 

Why,  we  look  at  that  lawyer  askance, 
Who  is  not  the  source  of  a  learned  discourse 

On  the  "grip,"  the  "swing"  or  the  "stance"; 
And  the  Judge  on  the  bench  —  he  of  the  woolsack, 

Does  he  court  honor  and  fame? 
If  so,  would  he  dare  to  just  sit  there, 

Knowing  naught  of  the  royal  game? 
Is  any  judge  fit  who  has  to  admit 

An  ignorance  of  "cleeks"  and  "mashies"? 
Why,  there's  nothing  to  do  except  to  construe 

Such  ignorance  culpable  laches. 
And  if  any  one  for  an  office  would  run, 

Why  he  can  do  never  a  thing, 


74  Flotsam  and  Jetsam 

Unless,  as  we  know,  he  clearly  can  show 

That  he  has  the  right  form  of  a  "swing." 
And  so  it  would  seem  that  the  plaintiff's  fond  dream 

Of  success  is  about  to  come  true, 
When  we  see  in  the  race  to  its  side  of  the  case 

All  the  lawyers,  excepting  a  few. 
And  the  Judge,  when  he  thinks,  unconsciously  "links" 

His  thoughts  to  the  plaintiff,  herein, 
And  it  then  only  takes  the  "pull"  that  he  makes 

To  assure  us  the  plaintiff  will  win. 

Now  someone  may  say  —  What's  the  case  anyway? 

It  may  as  well  be  explained, 
That  lawyer  and  judge  may  no  longer  drudge, 

Is  the  object  to  be  attained. 
And  the  plaintiff,  you  see,  wants  a  final  decree, 

To  be  enforced  everywhere, 
A  decree  that  will  make  the  attorneys  all  take 

An  outing  each  day  in  the  year. 
And  it's  well  here  to  say  there  is  excellent  pay, 

The  fees  which  the  plaintiff  will  give, 
Will  be  a  vast  wealth  of  pleasure  and  health, 

Which  will  make  it  worth  while  to  live : 
With  such  a  decree  there  surely  will  be 

An  age  without  a  fleck  or  a  flaw, 
When  lawyers  ('tis  clear)  will  be  known  everywhere, 

As  attorneys  and  golfers-at-law. 


The  Law  of  Vagrancy 

Jacob  Waddel  v.  State  of  Georgia,  27  Ga.  262. 

/  live  an  idle  burden  to  the  ground. 

—  ILIAD. 

IT  WAS  in  the  Empire  State  of  the  South, 
The  land  of  the  Elberta  peach, 
Where  the  soft  breezes  blow  and  the  watermelons 

grow, 

That  defendant  committed  a  breach 
Of  the  law,  and  the  Grand  Jury  solemnly  found, — 

Fixing  the  place  and  the  time, — 
That  defendant,  in  the  face  of  the  laws  of  the  state, 

Had  committed  a  heinous  crime: 
That  against  the  dignity  of  the  sovereign  state, 

And  the  peace  of  the  citizens  all, 
Defendant  had,  "with  force  and  arms"  — 
Been  doing  nothing  at  all. 

The  defendant  plead  the  proper  pleas, 

And  made  a  bold  defense, 
That  according  to  the  charges  made, 

He  was  guilty  of  no  offense; 
That  he  would  evade  the  charges  made, 

Successfully  on  the  ground, 


76  Flotsam  and  Jetsam 

That  he  could  detect  a  fatal  defect 

In  the  bill  of  indictment  found; 
That  the  phrase  vi  et  armis  implies 

Activity  in  strenuous  forms, 
And  one  could  never  do  nothing  at  all, 

And  do  it  with  force  and  arms. 

Besides,  beyond  a  reasonable  doubt, 

'Twas  shown  to  be  a  fact, 
That  he'd  once  wrought,  and  had  been  caught 

Committing  the  overt  act ; 
That  once,  in  a  weedy  potato  patch, 

A  witness  did  avow, 
Tho'  much  surprised,  he  recognized 

The  prisoner  using  a  plow. 
When  well  we  know  "The  Man  with  the  Hoe" 

Is  praised  in  terms  sublime, 
Pray  why  and  how  should  the  man  with  the  plow 

Be  stigmatized  with  crime? 
Where  is  our  boasted  freedom,  pray, 

Of  which  the  poets  sing, 
When  a  man  is  placed  behind  the  bars, 

When  he  hasn't  done  a  single  thing? 

But  the  Jury  found  defendant  bound, 

And  the  honorable  Court  decreed 
That  against  the  dignity  of  the  state 

He  was  guilty  of  the  deed ; 


The  Law  of  Vagrancy 


77 


The  deed  of  doing  nothing  at  all, 
When  the  indictment  did  concede 

He  had  broke  the  laws,  simply  because 
He  had  done  no  sort  of  a  deed. 

Most  solemnly  the  Court  adjudged, 

If  birds  can  sing  and  won't, 
They  yet  must  sing,  as  the  larks  in  spring, 

And  be  punished  if  they  don't. 
The  honorable  Court  pronounced  his  doom, 

A  heavy  fine  imposed, 
With  "force  and  arms"  he  must  work  it  out; 

And  so  the  case  was  closed. 

The  prisoner  solemnly  wended  his  way, 

Shackled  with  ball  and  chain, 
And  as  he  went  he  gave  free  vent 

To  the  following  sad  refrain : 
"O,  Adam  and  Eve,  Adam  and  Eve, 

What  a  debt  to  us  you  owe, 
O,  why  did  you  make  that  fatal  mistake, 

In  Eden  so  long  ago? 
If  you,  as  you  should,  had  just  been  good, 

Been  worshipping  at  the  kirk, 
And  had  just  let  be  the  old  apple  tree, 

There  were  no  such  a  thing  as  work." 


Per  Tout  et  Non  per  My 

A  HUSBAND  and  wife  once  purchased  a  fee, 
And  invited  another  to  join; 
The  deed  was  made  to  the  vendees  three, 

Each  paying  a  third  of  the  coin : 
The  land  was  sold,  a  profit  was  made, 

But  when  they  came  to  divide, 
The  third  party  said,  although  he  had  paid 

But  a  third  of  the  price  of  the  "hide," 
He  would  have  to  insist,  on  his  lawyer's  advice,  — 

As  the  law  was  perfectly  plain, — 
On  having  at  least  one-half  of  the  price, 

And  an  equal  share  of  the  gain. 
He  quoted  the  rule  —  exceptions  none  — 

And  the  law  they  couldn't  ignore, 
How  baron  and  femme  in  law  were  one, 

And  they  never  could  be  any  more ; 
And  how  they  were  simply  seised  per  tout, 

And  to  him  it  was  perfectly  plain, 
That  the  only  thing  that  they  could  do 

Was  to  cut  the  estate  in  twain. 
The  baron  was  mad,  but  clearly  saw 

That  nothing  else  could  be  done, 


Per  Tout  et  Non  per  My        79 

So  he  roundly  swore  at  the  Common  Law 

For  making  a  pair  but  one. 
But  the  other  one  says  the  law  is  a  gem, 

As  he  goeth  about  in  quest 
Of  another  guileless  baron  and  femme, 

With  wealth  they  want  to  invest ; 
He  indulges  himself  in  a  dry  little  laugh, 

And  says,  as  he  slily  winks, 
The  law  that  can  change  a  third  to  a  half 

Is  a  pretty  good  law,  he  thinks. 


A  "Breach  of  the  Peas" 

The  State  v.  Oscar  Need,  120  N.  C.  613. 

What,  all  my  pretty  chickens  and  their  dam 
A  t  one  fell  swoop?  _  M ACBETH 

IN  Carolina,  the  old  North  State, 
From  the  record  it  appears, 
There  dwelt  defendant,  Oscar  Neal, 

A  youth  of  tender  years ; 
And  close  beside  his  father's  home, 

A  home  where  sweet  content 
And  peace  of  mind  and  quiet  reigned, 

Another  pitched  his  tent. 
The  neighbors  dwelt  on  friendly  terms, 

There  was  nor  broil  nor  strife, 
In  an  atmosphere  Arcadian, 

They  lived  the  simple  life. 
The  dogs  and  cats  were  friendly  too, 

The  chickens  often  strayed 
Across  the  line  and  in  both  yards 

The  little  children  played. 

But  Oscar's  father,  one  spring  day, 

('Tis  thus  Fate  oft  decrees,) 
Beside  his  neighbor's  backyard  fence, 

Planted  a  patch  of  peas. 


A  "Breach  of  the  Peas11  si 

The  neighbor's  gallinaceous  brood, 

The  "tame,  villatic  fowl," 
As  Milton  styles  the  poultry  tribe. 

Began  to  stray  and  strowl ; 
And,  having  predilections  for 

The  patch  of  planted  peas, 
The  golden  opportunity 

They  chose  at  once  to  seize ; 
They  flew  the  fence,  and  gathered  in 

The  patch  of  peas  in  glee, 
And  when  the  fun  and  frolic  ceased, 

There  was  not  left  a  pea. 

Now,  Oscar  was  impetuous, 

Much  like  his  great  namesake, 
The  fiery  son  of  Ossian,  when 

The  demon's  once  awake; 
And  hence,  when  he  the  ruin  saw, 

And  the  damage  that  was  done, 
His  fury  exceeded  the  rage  and  wrath 

Of  Ossian 's  famous  son; 
And,  breathing  vengeance  'gainst  the  fowls, 

Despite  his  youthful  age, 
He  swiftly  swept  to  his  revenge, 

With  an  Othello's  rage. 
Espying  one  of  the  thieving  tribe, 

He  advanced  on  it  apace ; 


82  Flotsam  and  Jetsam 

The  chicken  beat  a  quick  retreat, 

And  Oscar  gave  it  chase: 
As  Hector  from  Achilles  fled 

Around  the  walls  of  Troy, 
So  fled  the  frightened  chicken  from 

The  infuriated  boy ; 
Across  and  o'er  adjoining  lots, 

The  ground  with  feathers  strewed, 
Thro'  weeds  and  cane  rushed  on  the  twain, 

Pursuer  and  pursued ; 
The  chicken  sought  a  refuge  in 

A  friendly  brush-pile  near, 
But  Oscar  pulled  the  pullet  out, 

Now  terrorized  with  fear ; 
Mercy  and  pity  now  were  fled, 

Revenge  was  in  his  heart, 
And  placing  a  foot  upon  its  head, 

The  pullet  was  pulled  apart : 
As  Nero,  consul  then  of  Rome, 

When  Hasdrubal  he  slew, 
Into  the  camp  of  Hannibal, 

The  bleeding  head  he  threw, 
So  bloody-minded  Oscar  showed 

Maliciousness  prepense, 
By  hurling  the  headless  chicken  o'er 

His  neighbor's  back-yard  fence. 


A    'Breach  of  the  Peas'1 

Then  spying  another  chicken  near, 

(It  looked  pea-green  to  him), 
In  rage  relentless,  Oscar  swore 

He'd  tear  it  limb  from  limb ; 
As  soon  as  found,  he  chased  it  round, 

Denouncing  it  meanwhile, 
Until  the  frightened  fowl  dodged  in. 

Another  near  brush-pile ; 
With  sharpened  stick,  he  jabbed  and  stabbed, 

And  pierced  it  thro'  and  thro', 
And  then  impaled  upon  a  spear, 

He  held  it  up  to  view: 
Before  his  neighbor's  dwelling  place, 

Exulting  o'er  his  foe, 
In  savage  triumph  Oscar  marched, 

Parading  to  and  fro, 
As  proud  as  a  Roman  conqueror, 

Returning  victorious  home, 
In  trophied  triumph,  marching  thro' 

The  garish  streets  of  Rome. 

He  then  saw  other  "villatic  fowls" — 

One  was  a  mother  dear, 
Hovering  fondly  o'er  her  brood, 

Now  paralyzed  with  fear; 
Like  Nemesis,  he  madly  rushed 

'Pon  mother  and  frightened  chicks, 


83 


84  Flotsam  and  Jetsam 

And  soon  a  score  were  ferried  o'er 

The  chicken  River  Styx. 
Retaliation  and  revenge 

Now  rankled  in  his  breast, 
His  blood  was  up  —  he  vowed  a  vow : 

Gallina  delenda  est; 
He  strewed  the  ground  with  headless  fowls, 

His  fury  unrestrained, 
Until  nor  hen  nor  rooster  proud, 

Nor  chickling  wee  remained. 

Like  Alexander,  then  he  sighed, 

Because  he  saw  nowhere 
A  predatory  pullet  or 

Marauding  rooster  near ; 
No  other  gallinaceous  worlds 

Remained  for  him  to  fight, 
To  satisfy  his  savage  soul, 

Or  glut  his  appetite. 

The  law  took  hold  of  Oscar  Neal, 

And  indicted  him  because 
He'd  cruelly  killed  his  neighbor's  fowls, 

Against  existing  laws ; 
Against  the  peace  and  dignity 

Of  the  State  —  so  read  the  bill  — 
Maliciously  and  wilfully 

He  did  the  chickens  kill. 


A    'Breach  of  the  Peas'1 

In  Court  young  Oscar  pleaded  all 

The  pleas  known  to  the  law ; 
He  took  advantage  of  every  slip, 

Of  every  fault  or  flaw ; 
He  fought  the  case  with  stubborn  will 

Thro'  each  successive  court, 
From  the  court  of  Robert  Shallow  to 

The  court  of  last  resort ; 
He  showed  that  he  himself  was  made 

The  victim  of  fowl-play ', 
That  'twas  his  neighbor's  chickens,  and 

Not  he,  that  went  astray ; 
That  he  himself  was  innocent, 

This  he  could  show  with  ease, 
And  that  the  gallinaceous  tribe 

Themselves  had  "breached  the  peas"; 
That  in  the  devastation  done, 

The  modus  operandi 
Showed  that  the  ruin  had  been  wrought, 

Animo  furandi; 
That,  if  /0w/-means  had  not  been  used, 

There'd  been  no  breach  of  laws, 
And  hence,  of  all  the  damage  done 

The  chickens  were  the  cause. 
But  the  Court  convicted  Oscar  Neal, 

O'erruling  all  his  pleas, 


85 


86  Flotsam  and  Jetsam 

Denying  his  right  to  kill  the  fowls, 

Tho'  they'd  destroyed  the  peas; 
They  held  the  conduct  of  the  fowls 

Was  vicious  as  the  dickens, 
And  yet  quite  clear  it  did  appear 

That  they  were  peas-full  chickens ; 
They  held  defendant  had  no  right, 

In  sudden  heat  and  passion, 
To  beat  to  death  his  neighbor's  fowls 

In  such  a  cruel  fashion; 
That  if  a  chicken  must  be  killed, 

The  law  the  guide  must  be, 
And,  as  a  guiding  precedent, 

The  Court  would  thus  decree : 
The  legal  way  to  kill  a  fowl 

Is  the  following,  to  wit: 
In  kindness  and  in  gentleness, 

Death  must  be  dealt  to  it ; 
The  killer  must  confute  and  meet 

Th'  indictments  charging  writ 
With  the  proven  plea  of  molliter 

Manus  imposuit. 


Ezekiel's  Plea 

WELL,  Ezekiel,"  said  the  Court, 
"It  appears  from  the  report, 
Which  the  jury  of  the  county 

have  returned, 
That  not  only  do  you  sigh 
For  the  chicken  roost  close  by, 

But  the  way  to  it  you  actually  have  learned. 
'Tis  the  policy  of  the  law, 
So  that  there  may  be  no  flaw 

In  proceedings  of  a  criminal  import, 
To  request  the  accused  to  plead 
Whether  guilty  of  the  deed, 

So,  Ezekiel,  you  may  now  address  the  Court.' 

"Well,  yo'  Honah,"  said  old  Zeke, 
As  he  slowly  rose  to  speak, 

"I  wants  ter  tell  you  all  about  de  case, 
An'  old  Zeke  will  take  de  pledge 
All  de  trufe  to  tell  de  jedge, 

An'  to  speak  it  to  de  jury  face  to  face: 
Zi  wuz  listenin'  t'other  day 
To  ole  Miss,  I  heahs  her  say, 


88  EzekiePs  Plea 

Dat  a  lady  in  society  standin'  high, 
While  a  shoppin'  in  de  town, 
When  no  clerks  dey  wuz  aroun', 

She  jes  lif '  a  diamond  ring  she  nebber  buy ; 
An'  moreover,  say  ole  Miss, 
Dey  don'  prosecute  foh  this, 

Foh  de  lady  am  a  kelptomaniac, 
Meanin'  dat  about  sich  things 
As  fine  jewelry  an'  rings, 

She  is  crazy  an'  not  guilty  —  dat's  a  fac'. 
It  am  true  ole  Zeke  did  creep, 
While  de  ownah  wuz  asleep, 

To  de  chicken  roos'  (dat  lodestone  to  de  black), 
An'  a  pullet  dar  he  lif, 
But  you'll  find  when  proofs  you  sif , 

As  to  chickens  Zeke's  a  kelptomaniac." 


De  Rivafonoli  vs.  Corsetti 

4  Paige  Ch.  462. 
Quaelibet  Jurisdictio  cancellos  suos  habet. 

^HE  defendant  agreed,  as  the  record  we  read 

In  Paige's  report  of  the  case, 
That  he  would  appear  and  sing  for  the  year, 

At  complainant's  opera  place; 
To  the  Gothamite  he  would  give  delight, 

In  the  soft  Italian  tongue, 
He  would  warble  and  sing  any  musical  thing 

That  ever  another  had  sung ; 
In  opera  grand,  or  the  comical  brand, 

Or  in  oratorio, 
He  would  sing  with  a  trill  and  a  rapturous  thrill, 

In  the  role  of  primo  basso. 
But  being  induced  by  the  wanderlust, 

He  couldn't  resist  the  appeals 
Of  a  fidgety  notion  to  cross  the  blue  ocean 

To  the  Queen  of  the  fair  Antilles. 
Now,  when  this  he  heard,  complainant  demurred, 

Because,  if  the  wizard  of  song 
Should  Gotham  forsake,  he  would  certainly  take 

His  baritone  voice  along. 


90  Flotsam  and  Jetsam 

Then  vision  arose  —  as  the  records  disclose,  — 

In  Rivafonoli's  brain, 
Of  shekels  galore  —  lost  to  him  evermore,  — 

If  he  couldn't  Corsetti  restrain. 
So,  with  the  intent  to  try  to  prevent 

The  song-bird  taking  the  wing, 
He  filed  a  bill  to  make  him  fulfill 

His  agreement  to  warble  and  sing; 
And  he  furthermore  pray'd  that  an  order  be  made 

To  keep  the  defendant  in  place- 
In  other  words,  that  a  ne  exeat 

Should  issue  at  once  in  the  case. 

Now,  the  Chancellor  that  at  the  hearing  sat, 

Realized  the  grave  import 
Of  the  questions  involv'd  that  had  to  be  solv'd 

By  a  wholly  unprejudiced  Court. 
He  said  'twould  appear  to  be  very  clear 

That  complainant  would  have  the  right 
To  obtain  a  decree  that  Corsetti 

Should  act  and  sing  and  recite ; 
But,  under  the  law,  he  plainly  saw 

How  difficult  it  would  be, 
With  the  full  support  of  the  Chancery  Court, 

To  enforce  the  Court's  decree; 
For  he  very  much  feared,  if  the  case  were  referred 

To  the  Master  to  ascertain 


De  Rivafonoli  vs.   Corsetti          91 

If  defendant,  in  fact,  was  breaching  the  pact, 

Such  reference  would  be  in  vain ; 
The  auricular  nerve,  the  Court  would  observe, 

Of  a  Master  in  Chancery, 
Is  not  attuned  so  as  that  he  would  know 

A  major  from  a  minor  key, 
And  he  couldn't  detect  a  glaring  defect, 

If  before  him  defendant  should  sing, 
Nor  tell,  without  doubt,  if  his  voice  gave  out 

Just  the  right  sort  of  musical  ring ; 
Moreover,  'twas  true  that  the  Master  knew 

Naught  at  all  of  the  Italian  tongue, 
And  he  never  would  know  in  what  lingo 

The  opera  grand  was  sung. 

As  a  general  thing,  if  a  bird  can  sing, 

It  must  • —  was  the  gist  of  the  bill, 
But  the  Court  said  he  couldn't  pass  a  decree 

That  could  force  it  against  its  will : 
And  he  said  'twas  clear  that  the  Court  would  err, 

And  commit  a  most  grievous  wrong, 
If  it  should  decree  that  Corsetti 

Should  sing  any  kind  of  a  song ; 
For  it  was  well  known  that  the  great  baritone 

Couldn't  warble  a  single  note, 
When  feeling  irate,  with  the  Court's  mandate 

Cross-wise  in  his  musical  throat. 


92  Flotsam  and  Jetsam 

Since  it  would  appear  that  the  Fall  of  the  year 

Was  the  time  in  the  contract  set 
For  Corsetti  to  act  —  and  it  was  a  fact 

That  the  time  hadn't  come  as  yet, 
The  Court  said  that  he  would  have  to  decree 

That  there  was  no  right  to  sue, 
When  there  wasn't  a  sign  of  frost  on  the  vine, 

Nor  a  drop  of  the  Autumn  dew. 
"There  must  be  a  limit  to  a  bill  guia  timet" 

Said  the  Court,  "and  it's  very  clear 
That  it  can't  be  maintained  nor  Corsetti  restrained 

In  the  case  which  the  Court  has  here ; 
And  it  is  held  that  a  ne  exeat 

The  Court  can  never  allow, 
When  complainant  can  cite  no  duty  or  right 

That  can  be  enforced  right  now ; 
And  suppose  there  should  be  a  final  decree 

That  the  agreement,  its  purpose  and  aim, 
Must  be  carried  through,  agreeably  to 

The  tenor  controlling  the  same, 
It  would  be  absurd  to  make  the  song-bird 

Execute  the  contract,  we  trow, 
In  its  true  tenor  when,  Corsetti,  we  ken, 

Sings  only  the  deep  basso." 

So  the  bill,  as  it  ought,  was  held  for  naught, 
As  the  record  of  the  case  reveals, 


De  Rivafonoli  vs.   Corsetti 

And  the  song-bird  flew  o'er  the  ocean  blue 
To  the  Queen  of  the  fair  Antilles; 

And  Rivafonoli  saw  plainly  the  folly, 
As  appears  from  Paige's  report, 

Of  trying  such  a  thing  as  to  make  a  bird  sing 
By  decree  of  the  Chancery  Court. 


93 


In  re  Goose 

N.  and  K.  R.  v.  Davis,  78  S.  W.  Rep.  1050. 

THE  plaintiff  owned  a  flock  of  geese, 
And  often  they  would  roam 
Abroad  to  glean  in  fields  of  green, 

And  woodlands  far  from  home. 
So  one  bright  day  they  stray 'd  away, 

And  ere  they  would  turn  back, 
They  would  explore  the  forage  o'er 

Upon  the  railroad  track. 
Just  as  upon  the  track  they  came, 

As  the  plaintiff's  evidence  show'd, 
With  speed  uncheck'd,  a  train  direct 

Was  sweeping  down  the  road ; 
Each  of  the  flock  stood  like  a  rock, 

As  much  as  if  to  say : 
"Now,  do  your  worst,  we  were  here  first, 

And  have  the  right  of  way." 
But  the  coming  train  swept  on  amain, 

Like  a  fiery  demon  loose,  — 
The  air  was  fill'd  with  maim'd  and  killed  — 

With  feathers  and  with  goose. 


In  re  Goose 

The  sad  decease  of  plaintiff's  geese 

Brought  on  a  bitter  suit, 
And  the  Court  august  had  to  adjust 

The  matters  in  dispute. 
The  plaintiff  show'd  defendant  road 

Had  no  lookout  ahead, 
The  law  defied  —  no  brakes  applied, 

As  the  train  swift  onward  sped ; 
He  said  'twas  true  no  whistle  blew, 

When  the  danger  they  foresaw, 
And  that  said  road  ignored  the  Code, 

And  wantonly  broke  the  law ; 
For  by  the  Code  each  separate  road 

Said  safeguards  must  not  lack, 
When  persons  or  when  animals 

Appeared  upon  the  track. 

Defendant  road  then  plainly  showed, 

Ere  the  accident  befell, 
The  whistle  blew  both  loud  and  true, 

And  the  trainmen  rang  the  bell. 
The  road  denied  the  law  applied 

To  flocks  of  wandering  geese, 
Or  that  the  laws  made  it  the  cause 

Of  the  geese's  sad  decease; 
And,  furthermore,  the  road  would  plead 

As  a  complete  defense, 


95 


96  Flotsam  and  Jetsam 

The  geese  themselves  were  guilty  of 

The  grossest  negligence; 
For  ev'rywhere  (it  did  aver) 

Th'  authorities  all  agree, 
In  any  case,  to  act  the  goose 

Is  negligence  per  se. 

As  the  record  shows,  the  point  arose 

As  to  whether  it  was  true, 
That  person  would  a  goose  include 

Within  the  law's  purview, 
The  Court  opined,  and  so  did  find, 

That  a  person  is  oft  a  goose, 
But  to  construe  the  converse  true, 

Would  be  without  excuse. 

Next  in  the  suit,  rose  in  dispute 

The  point  made  by  the  road, 
That  goose  was  not  an  animal 

As  used  in  Shannon's  Code; 
That  should  the  word  include  a  goose, 

'Twould  likewise  take  in  all 
The  little  birds,  the  busy  bees, 

And  all  that  creep  or  crawl ; 
'Twas  so  absurd,  the  Judges  fear'd 

The  law  they'd  slightly  strain, 


In  re  Goose 

If  they  should  hold  for  such  as  these 
Defendant  must  stop  the  train. 

As  'twould  appear,  the  Court  somewhere 

The  meaning  must  confine, 
They  all  agreed,  and  so  decreed 

At  goose  they'd  draw  the  line. 
And  solemnly  the  Court  then  held 

Defendant  should  go  hence, — 
That  goose  was  not  an  animal, 

In  the  statutory  sense. 

'Tis  said  when  plaintiff  realized 

Not  only  he'd  lost  the  flock, 
But  likewise  lost  the  fees  and  cost,  — 

He  suddenly  felt  a  shock : 
And,  furthermore,  thinking  it  o'er, 

As  he  paid  his  hard-earned  pelf, 
In  one  respect,  he  did  detect 

That  he  was  a  goose  himself! 


97 


Oscillatory  Assault 

Fuller  v.  State.,  72  S.  W.  Rep.  184. 

THE  Court  down  in  the  Lone  Star  State 
Defendant  Fuller  cited 
To  appear  and  plead  as  to  a  deed 

For  which  he  was  indicted. 
A  maiden  fair  did  roundly  swear, 

(It  was  a  grievous  matter), 
That  the  defendant  puckered  up 

His  lips  and  smacked  them  at  her; 
And,  furthermore,  the  maiden  swore 

He  made  the  sign  of  kissing, 
Tho'  what  that  meant,  —  or  the  intent  — 

The  proof  thereof  was  missing. 
Fuller  obeyed  the  summons  made, 

And  'gainst  the  charge  defended 
Upon  the  ground  it  would  be  found 

There  was  no  crime  intended. 
The  proof  as  made  was  duly  weighed, 

As  it  nowhere  conflicted, 
The  Court  below  • —  the  records  show  — 

Defendant  quick  convicted ; 


Oscillatory  Assault  99 

Convicted  of  a  base  assault, 

And  the  Court  adjudicated 
That  the  offense  —  because  prepense  — 

Was  greatly  aggravated. 

Now  the  decree  —  especially 

The  punishment  attendant  — 
Was  not  at  all  what  one  would  call 

Agreeable  to  defendant; 
The  blow  it  dealt  was  keenly  felt, 

(He  could  not  help  but  feel  it), 
And,  therefore,  he,  most  naturally, 

Decided  to  appeal  it. 
Before  the  Court  of  last  resort, 

For  its  consideration, 
The  case  was  brought,  and  earnest  thought 

Indulged  on  osculation. 
The  Court  divined  that  it  must  find 

That  Fuller  be  acquitted, 
Unless  'twas  shown  a  battery  could 

Have  really  been  committed ; 
It  held  the  prisoner  at  the  bar, 

When  the  puckered  lips  were  smacking, 
And  when,  in  fine,  the  kissing  sign 

Was  in  no  manner  lacking, 
Was  held  at  bay  four  feet  away, 

And,  tho'  he  aimed  them  at  her, 


ioo  Flotsam  and  Jetsam 

The  puckered  lips  and  kissing  sign 

Could  not  the  maiden  batter ; 
That  lips,  tho'  puckered  e'er  so  much, 

Must  have  their  limitation, 
And,  when,  in  fact,  there's  no  contact, 

There's  not  an  osculation ; 
That  what  was  called  the  kissing  sign, 

Tho'  with  presumption  laden, 
Was  but  a  buss  in  nubibus 

And  could  not  reach  the  maiden ; 
That,  while  indeed  'twould  be  decreed 

That  Fuller  be  acquitted, 
The  Court  yet  saw  another  law, 

For  which  the  case  was  fitted ; 
To  substitute  a  mere  salute, 

Or  puckered  lips  for  kissing, 
Showed  but  too  plain  that  in  the  brain 

Was  something  surely  missing ; 
As,  if  you'd  see  a  honey  bee 

Go  circling  'round  the  bower, 
With  smacking  lips,  as  if  it  sips 

The  nectar  from  the  flower  — 
But  never  goes  e'en  near  the  rose, 

But  seems,  in  fact,  contented 
To  buzz  about  —  you'd  say  no  doubt, 

That  bee  must  be  demented. 


Oscillatory  Assault  101 

The  Court  could  but  remand  the  case, 

With  proper  procedendo, 
To  grant  the  writ,  most  fit,  to  wit: 

De  Lunatico  Inquirendo. 


The  Jury 


FROM  our  forebears,  the  rolling  years 
Have  brought  us,  we  admit, 
Some  things  which  are  unto  the  bar 

Of  lasting  benefit ; 
But  'mongst  the  things  bequeathed  to  us 

Are  some  we  must  condemn, 
As  not  just  what  we  should  have  got  — 

And  the  jury  is  one  of  them. 
Sometimes  we  find  we  are  inclin'd 

To  think  that  juries  are 
Simply  devised  to  tantalize 

The  members  of  the  bar ; 
They  are  enigmas  to  us  all, 

And  oftentimes,  methinks, 
As  puzzling  and  mysterious  as 

The  riddle  of  the  Sphinx. 
To  see  them  sitting  in  the  box, 

With  bland  and  child-like  smile, 
They  seem  to  be  entirely  free 

From  anything  like  guile ; 
They  appear  to  be  men  actually 

Tn  whom  we  may  confide, 


The  Jury 


103 


And  face  to  face  examine  the  case  — 

Especially  our  own  side ; 
They  look  so  kind,  we  are  inclined 

To  think  each  one  a  friend, 
And  hence  disclose  our  client's  woes 

And  the  wrongs  as  they  impend ; 
Then  we  relate  how  cruel  Fate 

Our  client  has  pursued, 
And  our  belief  they'll  give  relief, 

When  the  facts  they  have  review 'd ; 
We  show  they  must  in  no  wise  trust 

The  other  side  a  whit, 
And  warn  them  'gainst  their  lawyer's  wiles, 

As  from  a  dangerous  pit ; 
But  after  all  the  confidence 

And  trust  in  them  reposed, 
And  after  we  most  carefully 

The  pitfalls  have  exposed, 
They  straightway  make  a  grave  mistake,  — 

Just  one  of  their  usual  kind  — 
As  they,  (despite  we're  in  the  right), 

An  adverse  verdict  find. 

On  occasions  we  a  juror  see, 

And  form  th'  opinion  then, 
That  here's  a  soul  who  can  control 

The  other  eleven  men; 


104  Flotsam  and  Jetsam 

'Tis  our  desire  him  to  inspire 

And  deeply  to  impress, 
And  hence,  with  vim,  devote  to  him 

The  most  of  our  address ; 
At  him  we  thunder  law  and  facts, 

Which  should  hold  him  enrapt, 
But  strange!  just  then,  the  moment  when 

The  climax  we  have  capp'd, 
In  him  we  spy  a  drooping  eye, 

And  then  there  comes  to  view 
(A  dread  and  most  portentous  sign) 

A  smother 'd  yawn  or  two. 
We  plainly  see  that  there's  to  be 

A  tilt  with  the  slumber-god, 
And  we  must  fight  to  keep  this  wight 

Out  of  the  land  of  Nod ; 
We  know  we'll  meet  with  sure  defeat, 

Unless  we  manage  to  keep  — 
And  that  at  once  —  this  witless  dunce 

And  dolt  from  going  to  sleep; 
We  fulminate,  gesticulate, 

All  sorts  of  noise  we  make, 
The  desk  we  bang,  while  we  harangue 

To  keep  this  man  awake : 
But  strange !  the  more  we  rant  and  roar, 

The  more  we  shout  and  whoop, 


The  Jury  105 

The  faster  come  the  nods  and  yawns, 

The  more  the  eye-lids  droop,  — 
'Tis  all  in  vain  —  dull  drowsiness 

And  languor  o'er  him  creep,  — 
The  god  of  slumber  wins  the  case  — 

The  juror's  fast  asleep. 
Of  what  avail  is  eloquence, 

Or  knowledge  of  the  law, 
Or  argument  that's  evident 

Without  a  fleck  or  flaw? 
When  Morpheus  waves  his  leaden  wand, 

Then  law  and  facts  give  way, 
And  the  drowsy,  dull  and  dozy  god, 
Laden  with  dreams  from  the  land  of  Nod, 

Holds  universal  sway. 

Sometimes  a  juror  we  perceive, 

Who  acts  in  such  a  way, 
He  seems  intent  on  everything, 

Which  we  may  have  to  say ; 
He  seems  to  give  attention  to 

Each  argument  advanc'd, 
And  keeps  his  eye  upon  us  fix'd, 

And  if  he  were  entranc'd ; 
And  we  conclude  his  attitude 

Toward  us  doth  attest 


106  Flotsam  and  Jetsam 

And  goes  to  show  conclusively 

How  deeply  he's  impressed ; 
You  may  surmise  our  great  surprise, 

When  he  is  heard  to  say, 
The  reason  why  he  kept  his  eye 

Upon  us  in  that  way, 
Was  our  address  did  so  digress, 

It  was  both  pro  and  con, 
He  strained  his  eye  and  fagg'd  his  brain, 
Trying  in  vain,  to  ascertain 

Which  side  'twas  we  were  on. 


When  with  reports,  text-books  and  courts 

The  lawyer's  toil  is  o'er, 
And  he  has  passed  to  his  reward 

Upon  the  other  shore, 
He  need  not  see  the  jasper  walls, 

Nor  yet  need  he  behold 
The  crystal  sea  or  gates  of  pearl, 

Nor  tread  the  streets  of  gold, 
To  know  that  he's  in  Paradise, 

For  that  fact  will  appear, 
When,  as  he  pleased  the  scene  surveys, 
His  eyes  shall  on  this  legend  gaze : 

"There  are  no  juries  here." 


Afterthought 


WE  TRUST  each  member  of  the  bar, 
Who  may  have  struggled  thro'  thus  far, 
Has  found  —  his  struggles  not  in  vain  — 
Somewhat  to  please  and  entertain ; 
Some  jests  or  fancies  to  beguile 
The  time,  with  here  and  there  a  smile; 
And,  tho'  these  lines  may  trifles  be, 
Like  flotsam  floating  on  the  sea, 
Or  jetsam  from  the  ship  cast  o'er, 
Drifting  with  the  tide  ashore, 
Yet  know  we  "nonsense  now  and  then 
Is  relished  by  the  wisest  men" ; 
And,  therefore,  whosoe'er  has  read 
The  nonsense  o'er  these  pages  spread, 
And  relished  it  —  we  clearly  ken  — 
Has  gained  an  honored  station  then 
Among  the  very  wisest  men. 


UC  SOUTHERN  REGIONAL  LI  RARY 'FACLITY 


A     000  679  733     6 


